"http://frwebgate.access.gpo.gov/cgi-bin/style.cgi"> The U.S. Equal Employment Opportunity Commission

CHAPTER 11

ATTORNEY'S FEES AND COSTS

INTRODUCTION
In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part 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). (Complainants prevailing on claims under the Age Discrimination in Employment Act of 1967, as amended, and the Equal Pay Act of 1963, as amended, are not entitled to attorney's fees at the administrative level.) Only where a Title VII or Rehabilitation Act complainant rejects an offer of resolution made in accordance with 1614.109(c) and does not obtain more relief than the agency had offered, or in the rarest of other circumstances, might an agency limit or deny an award of fees.

This Chapter of the Management Directive sets forth guidance for use by persons seeking an award of attorney's fees and costs, attempting to determine entitlement to fees and costs, or seeking to limit an award. In the Chapter, the Management Directive defines "prevailing party," discusses a prevailing party's entitlement to fees, notes who may be entitled to an award of fees and what costs may be recoverable, notes how fees are computed, and describes the contents of a fee petition and the procedure for its submission and determination. This guidance applies only to the federal sector administrative process.
DETERMINATION OF PREVAILING PARTY STATUS
1. A "prevailing party," within the meaning of Section 706(k) of Title VII, 42 U.S.C. 2000e-5(k), is a complainant who has succeeded on any significant issue that achieved some of the benefit the complainant sought in filing the complaint. Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). The Commission has relied on a two-part test set forth in Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), for determining whether a complainant is a prevailing party. Baldwin v. Department of Health & Human Services, EEOC Request No. 05910016 (April 12, 1991). To satisfy the first part of the test, the complainant must have substantially received the relief sought. Id. To satisfy the second part of the test, there must be a determination that the complaint was a catalyst motivating the agency to provide the relief. Id. (citing Miller, 706 F.2d at 341). A purely technical or de minimis success is insufficient to confer "prevailing party" status. Texas State Teachers Ass'n.
2. The touchstone is whether the actual relief on the merits materially alters the legal relationship between the parties by modifying the agency's behavior in a way that directly benefits the complainant. Farrar v. Hobby, 506 U.S. 103 (1992); Bragg v. Department of the Navy, EEOC Appeal No. 01945699 (March 7, 1996). Even an award of nominal monetary damages may be sufficient to meet this standard. Farrar. Monetary relief is not required; non-monetary relief such as reinstatement or a higher performance rating is sufficient. Id.
3. An attorney who represents himself is not entitled to an award of fees. Kay v. Ehrler, 499 U.S. 432 (1991). Neither a non-attorney nor a federal employee (including attorneys) who represents a complainant is entitled to an award of fees. 1614.501(e)(1)(iii).
PRESUMPTION OF ENTITLEMENT
1. A prevailing complainant is presumptively entitled to fees and costs unless special circumstances render such an award unjust. 1614.501(e)(1)(i); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1983); Thomas v. Department of State, EEOC Appeal No. 01932717 (June 10, 1994). Special circumstances should be construed narrowly. The following arguments are not sufficient to show special circumstances:
  1. the complainant did not need an attorney;
  2. the complainant's attorney worked for a public interest organization;
  3. the complainant's attorney accepted the case pro bono;
  4. the complainant's attorney was paid from some private fee agreement;
  5. the complainant was able to pay the costs of the case;
  6. the agency acted in good faith;
  7. the agency took prompt action in remedying the discrimination;
  8. the financial burden of any fee would fall to the taxpayers;
  9. the agency has limited funds.
  See Blanchard v. Bergeron, 489 U.S. 87 (1989); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10^th Cir. 1997); Jones v. Wilkinson, 800 F.2d 989 (10^th Cir. 1986); Fields v. City of Tarpon Springs, 721 F.2d 318 (11^th Cir. 1983); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); see also Wise v. Department of Veterans Affairs, EEOC Request No. 05920056 (April 1, 1992).
2. Agencies are not required to pay for attorney's fees for services rendered during the pre-complaint process unless an administrative judge issues a decision finding discrimination, the agency issues a final order that does not implement the decision, and EEOC upholds the administrative judge's decision on appeal. If the agency agrees to fully implement the Administrative Judge's decision, it cannot be compelled to pay attorney's fees for fees incurred during the pre-complaint process, except that fees may be recovered for a reasonable period of time for services performed in reaching the decision whether to represent the complainant. 1614.501(e)(1)(iv). The agency and the complainant can agree, however, that the agency will pay attorney's fees for pre-complaint process representation. Id.
3. No attorney's fees may be awarded under the Age Discrimination in Employment Act or Equal Pay Act for services performed at the administrative level. Lowenstein v. Baldridge, 38 Fair Empl. Prac. Cas. (BNA) 466 (D.D.C. 1985); 1614.501(e)(1).
AWARDS TO PREVAILING PARTIES IN NEGOTIATED SETTLEMENTS
1. A complainant who prevails through a negotiated settlement is entitled to attorney's fees and costs under the same standards as any other prevailing party. Maher v. Gagne, 448 U.S. 122 (1980); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); EEOC v. Madison Community Unit Sch. Dist. 12, 818 F.2d 577 (7^th Cir. 1987); Cerny v. Department of the Navy, EEOC Request No. 05930899 (October 19, 1994). A settlement agreement that fails, however, to preserve the issue of fees and costs will operate as an implicit waiver of fees and costs. Wakefield v. Matthews, 852 F.2d 482 (9^th Cir. 1988); Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986). The Commission strongly encourages parties to resolve fee and cost issues by negotiated settlement.⁽¹⁾
2. The Administrative Judge will not review a negotiated fee agreement for fairness or reasonableness, except in class cases. Foster v. Boise-Cascade, Inc., 577 F.2d 335 (5^th Cir.) (per curiam), reh'g denied, 581 F.2d 267 (5^th Cir. 1978); Jones v. Amalgamated Warbasse Houses, Inc., 721 F.2d 881 (2d Cir. 1983), cert. denied, 466 U.S. 944 (1984). In class cases, the Administrative Judge should review the agreement to ensure that the negotiated fee is fair and reasonable to all parties.
AWARDS OF COSTS AND FEES FOR EXPERT AND NON-LAWYER SERVICES
1. A prevailing complainant is entitled to recovery of his/her costs. Costs include those costs authorized by 28 U.S.C. 1920. 1614.501(e)(2)(ii)(C). These include: witness fees; transcript costs; and printing and copying costs. In addition, reasonable out-of-pocket expenses may include all costs incurred by the attorney that are normally charged to a fee-paying client in the normal course of providing representation. Hafiz v. Department of Defense, EEOC Petition No. 04960021 (July 11, 1997). These costs may include such items as mileage, postage, telephone calls, and photocopying.
2. A prevailing complainant is entitled to expert fees as part of recoverable attorney's fees. 42 U.S.C. 1988. The fee is not limited to per diem expenditures, but includes all expenses incurred in connection with the retention of an expert. Id. Recovery is generally limited to testifying experts, but fees may be awarded for non-testifying experts if the complainant can show that the expert's services were reasonably necessary to the case.
3. A prevailing complainant is entitled to compensation for the work of law clerks, paralegals, and law students under the supervision of members of the Bar, at market rates, 1614.501(e)(1)(iii), but not for clerical services. Missouri v. Jenkins, 491 U.S. 274 (1989).
4. Reasonable costs incurred directly by a prevailing complainant (e.g., one who is unrepresented or who is represented by a non-lawyer) are compensable. Hafiz, supra. Costs must be proved in the same manner as fees are, and the complainant must provide documentation, such as bills or receipts.
5. Witness fees shall be awarded in accordance with 28 U.S.C. 1821, except that no award shall be made for a federal employee who is in a duty status when made available as a witness. 1614.501(e)(2)(iii).
COMPUTATION OF ATTORNEY'S FEES
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).
2. There is a strong presumption that the lodestar represents the reasonable fee. 1614.501(e)(2)(ii)(B). In limited circumstances, the lodestar figure may be adjusted upward or downward, taking into account the degree of success, the quality of representation, and long delay caused by the agency. The lodestar may be adjusted only under the circumstances described in this sub-part.
  1. An award of attorney's fees may be enhanced in cases of exceptional success. The complainant must show that such an enhancement is necessary to determine a reasonable fee. City of Burlington v. Dague, 505 U.S. 557 (1992). Conversely, a fee award may be reduced in cases of limited success. Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). However, there is no requirement that fee awards be proportional to the amount of monetary damages awarded. City of Riverside v. Rivera, 477 U.S. 561 (1986).
  2. An award of attorney's fees may be enhanced where the quality of representation is exceptional. McKenzie v. Kennickell, 875 F.2d 330 (D.C. Cir. 1989). Conversely, the award of attorney's fees may be reduced where the quality of representation was poor, the attorney's conduct resulted in undue delay or obstruction of the process, or where settlement likely could have been reached much earlier but for the attorney's conduct. Lanasa v. City of New Orleans, 619 F. Supp. 39 (E.D. La. 1985); Barrett v. Kalinowski, 458 F. Supp. 689 (M.D. Pa. 1978).
  3. The lodestar may not be enhanced to compensate for the risk of non-payment, risk of losing the case, or difficulty finding counsel. City of Burlington v. Dague, 505 U.S. 557 (1992).
  4. A lodestar may be adjusted to compensate for a long delay where the delay is caused by the agency. Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711 (1987).
  5. If the Administrative Judge or agency determines that an adjustment to the lodestar is appropriate, the Administrative Judge or agency may calculate the adjustment by either adding or subtracting a lump sum from the lodestar figure or by adding or subtracting a percentage of the lodestar. The Administrative Judge or agency has discretion to determine the amount of the adjustment. Normally, the adjustment should be no more or less than 75% of the lodestar figure. The Administrative Judge or agency must provide a detailed written explanation of why the adjustment was made, and what factors supported the adjustment. Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331 (1^st Cir. 1997).
  6. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980); Brown v. Department of Commerce, EEOC Appeal No. 01944999 (May 17, 1996).
3. Where a complainant rejects an offer of resolution and the final decision is not more favorable than the offer, attorney's fees and costs incurred after the expiration of the thirty (30) day acceptance period are not compensable. 1614.109(c)(3). This regulation further provides that an Administrative Judge may award attorney's fees and costs despite the complainant's failure to accept an offer of resolution where "the interests of justice would not be served" by a denial of fees. An example of when fees would be appropriate is where the complainant received an offer of resolution, but was informed by a responsible agency official that the agency would not comply in good faith with the offer (e.g., would unreasonably delay implementation of the relief offered). A complainant who rejected the offer for that reason, and who obtained less relief than was contained in the offer of resolution, would not be denied attorney's fees in this situation.
CONTENTS OF FEE APPLICATION AND PROCEDURE FOR DETERMINATION
1. When the decision-making authority, that is, the agency, an administrative judge, or the Commission, issues a decision finding discrimination, the decision normally should provide, under the standards set forth above, for the complainant's entitlement to attorney's fees and costs. The complainant's attorney then must submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the agency or administrative judge within thirty (30) days of receipt of the decision and must submit a copy of the statement to the agency. 1614.501(e)(2)(i).⁽²⁾
  A statement of attorney's fees and costs must be accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. A verified statement of fees and costs shall include the following:
  1. a list of services rendered itemized by date, number of hours, detailed summary of the task, rate, and attorney's name;
  2. documentary evidence of reasonableness of hours, such as contemporaneous time records, billing records, or a reasonably accurate substantial reconstruction of time records;
  3. documentary evidence of reasonableness of rate, such as an affidavit stating that the requested rate is the attorney's normal billing rate, a detailed affidavit of another attorney in the community familiar with prevailing community rates for attorneys of comparable experience and expertise, a resume, a list of cases handled, or a list of comparable cases where a similar rate was accepted; and
  4. documentation of costs.
  National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). A fee award may be reduced for failure to provide adequate documentation. If seeking an adjustment to the lodestar figure, the fee application shall clearly identify the specific circumstances of the case that support the requested adjustment. Id.
2. The agency may respond to the statement of fees and costs within 30 days of its receipt. If the agency contests the fee request, it must provide equally detailed documentation in support of its arguments. National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982).
3. Discovery into the reasonableness of the hours or rate is permissible, but discouraged. The Administrative Judge has discretion to grant or deny permission to conduct discovery by interrogatory or document request.
4. The Administrative Judge or agency will issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit. 1614.501(e)(2)(ii)(A). The decision should provide a written explanation of any award of fees and costs, including, as appropriate, findings of fact, analysis, and legal conclusions. 1614.501(e)(2)(ii)(A). The decision must include a notice of right to appeal to the EEOC.
5. The Commission encourages the parties to resolve fee and cost issues by negotiated settlement during the 30-day period for filing a fee petition. As noted in section IV. B above, the administrative judge will not review a negotiated fee agreement for fairness or reasonableness, except in class cases.
6. If the administrative judge decides to bifurcate the liability and damages determinations in a case, the decision on liability should provide for entitlement to attorney's fees and the subsequent decision on damages should also include the determination of the amount of the award of fees and costs. The complainant's attorney should be directed to submit the statement of fees and costs within 30 days of receipt of the decision finding liability. The attorney may submit a supplemental petition for fees incurred during the damages phase of the case.
MISCELLANEOUS ISSUES
1. An Administrative Judge may award interim fees pendente lite where the complainant has prevailed on an important non-procedural allegation of discrimination in the course of the case. Hanrahan v. Hampton, 446 U.S. 754 (1980); Trout v. Garrett, 891 F.2d 332 (D.C. Cir. 1989). However, interim awards should be granted only under special circumstances, such as where a complainant's attorney has invested substantial time and resources into a case over a long period of time.
2. A prevailing complainant is entitled to an award of fees for time spent on a fee claim, including time spent defending the award on appeal. Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9^th Cir. 1981); Lund v. Affleck, 587 F.2d 75 (1^st Cir. 1978). However, the Administrative Judge may reduce or eliminate fees for time spent on litigating the fee award where fee claims are exorbitant or the time devoted to preparing a fee claim is excessive. Gagne v. Maher, 594 F.2d 336 (2d Cir. 1979), aff'd, 448 U.S. 122 (1980). A reasonableness standard applies. Black v. Department of the Army, EEOC Request No. 05960390 (December 9, 1998).
3. Even absent a finding of discrimination, the administrative judge has authority to impose attorney's fees and costs as an appropriate sanction for refusal to obey discovery or other orders. 1614.109(f)(3)(v). For example, a complainant may be entitled to attorney's fees when the agency fails without good cause shown to respond to discovery requests, Shine v. U.S. Postal Service, EEOC Appeal No. 01972201 (December 12, 1998), or falsifies documents or testimony, Wichy v. Air Force, EEOC Appeal No. 01962972 (September 25, 1998). Fees and costs may be awarded for work associated with efforts to secure discovery compliance, even when the complainant does not prevail on the merits. Stull v. Department of Justice, EEOC Appeal No. 01942827 (June 15, 1995).

Chapter 10 | Table of Content | Chapter 12

1. Where the parties enter into a settlement agreement that provides for but does not quantify the amount of attorney's fees and costs, the attorney should submit his/her statement of fees and costs and supporting documentation to the agency for determination of the amount due. The agency should issue a decision on fees within 60 days of receipt of the statement and supporting documentation. See 1614.501(e)(2)(ii)(A). If the complainant disputes the amount awarded, s/he may file an appeal with the Commission.

2. Where the Commission finds discrimination in a case in which the agency takes final action under 1614.110(a), the Commission will remand the case to the Administrative Judge for a determination of attorney's fees. Where the decision on appeal originates from a case handled exclusively by the agency (i.e., where the complainant elected a final agency decision under 1614.110(b)), the Commission will remand the case to the agency for a determination of attorney's fees.

This page was last modified on September 30, 2003.

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