Porter v. Winter

Filing 91

ORDER on Motion for Attorney's Fees re 86 , 87 , signed by District Judge Lawrence J. O'Neill on 4/4/13. (Gonzalez, R)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
RONALD L. PORTER,

CASE NO. 1:06-cv-00880-LJO-SMS

12
Plaintiff,
13
14

ORDER ON MOTION FOR ATTORNEY’S
FEES (Docs. 86, 87)

vs.
DONALD C. WINTER, Secretary of the
Department of the Navy,

15
Defendant.
16
/
17
18

I. INTRODUCTION

19

Pro se plaintiff Ronald L. Porter (“Mr. Porter”) is a former civilian employee for the Navy. He

20

filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) in which he alleged

21

gender discrimination and retaliation under Title VII. The EEOC found the Navy liable for retaliation

22

and awarded attorney’s fees. In this action, Mr. Porter challenges the EEOC’s award of attorney’s fees

23

and costs. Now before the Court are the parties’ papers regarding Mr. Porter’s challenges to the award.

24

For the reasons discussed below, Mr. Porter’s motion for attorney’s fees is DENIED.

25
26

II. BACKGROUND
A. Facts

27

On April 12, 2001, the EEOC found the Navy liable for retaliation. During the administrative

28

proceeding Mr. Porter represented himself. The Navy appealed. On appeal, Mr. Porter retained Elaine
1

1

Wallace as counsel and responded to the Navy’s appeal. The EEOC’s decision was upheld. Mr. Porter,

2

still proceeding with counsel, filed a request for reconsideration in which he requested additional

3

damages and corrective action. The request for reconsideration was denied.

4

On September 13, 2003, Mr. Porter submitted a request for attorney’s fees and costs. Mr. Porter

5

and Ms. Wallace submitted declarations in support of the request. Mr. Porter’s declaration outlined

6

$1,610.34 in costs. Ms. Wallace’s declaration outlined $1,405.02 in costs and $23,625 in attorney’s fees

7

for 67.5 hours of work at a rate of $350 an hour. On April 1, 2004, the Department of the Navy

8

(“Department”) issued its final decision on the amount of attorney’s fees and costs to be awarded. It

9

awarded Ms. Wallace $1,875 in attorney’s fees and a lump sum of $1,000 in costs. The Department

10

determined that the request for fees and costs was not supported by sufficiently detailed

11

contemporaneous time records or documentation of costs. The Department further determined that Ms.

12

Wallace was only entitled to fees for services rendered after June 23, 2001, because Mr. Porter

13

represented himself up until that point which left only 7.70 hours of services for which reimbursement

14

was sought. The Department found the 7.70 hours to be an unreasonable amount and reduced the

15

number to 4.25 hours. The Department awarded an additional 2.0 hours for the time it took Ms.

16

Wallace to make a decision on representation for a total award of 6.25 hours. The Department reduced

17

Ms. Wallace’s hourly rate, without explanation, to $300 an hour and ultimately awarded her $1,875 in

18

fees. The Department awarded a lump sum of $1,000 in costs given the absence of supporting

19

documentation.

20

Mr. Porter timely appealed the Department’s decision to the EEOC. In a decision dated

21

September 20, 2005, the EEOC increased the award of attorney’s fees to $3,395 and left the $1,000

22

award in costs undisturbed. The EEOC determined that because the Department failed to specify its

23

rationale for reducing Ms. Wallace’s hourly rate, that Ms. Wallace sufficiently established an hourly rate

24

of $350. The EEOC further determined that the Department failed to substantiate why it found the hours

25

requested to be unreasonable and awarded the 7.70 hours worked after June 23, 2001, plus the 2.0 hours

26

it took Ms. Wallace to make a decision on representation, for a total award of 9.70 hours. 9.70 hours

27

at an hourly rate of $350 totals $3,395. The EEOC left the $1,000 award in costs undisturbed based on

28

its determination that there was insufficient documentation regarding the costs incurred. Following the
2

1

EEOC’s decision, Mr. Porter filed a request for reconsideration which was denied.

2

B. Procedural History

3

On July 11, 2006, Mr. Porter filed a pro se complaint with this Court against Donald C. Winter,

4

Secretary of the Department of the Navy (“Navy”). (Doc. 1). He contends that he is entitled to the full

5

amount of attorney’s fees and costs previously requested. (Doc. 1). This Court dismissed the complaint

6

and the second amended complaint for lack of subject matter jurisdiction based on its determination that

7

it did not have jurisdiction to adjudicate a claim solely for attorney’s fees “without a claim of a

8

substantive violation of Title VII.” (Doc. 15, 29). Mr. Porter appealed. (Doc. 36). The Ninth Circuit

9

reversed this Court’s decision and remanded based on its determination that “[b]ecause 42 U.S.C. §§

10

2000e-5(f)(1) and 2000e-5(k) authorize a civil suit in federal court solely to recover attorney’s fees for

11

legal work done in administrative proceedings, Porter’s claim qualifies as an ‘action [] brought under

12

this subchapter’ for purposes of Title VII’s jurisdictional grant.” Porter v. Winter, 603 F.3d 1113, 1118

13

(9th Cir. 2010) (quoting 42 U.S.C. § 2000e-5(f)(3)).

14

On remand, this Court found Mr. Porter’s claim suitable for a decision without a hearing or trial,

15

vacated the trial dates, and ordered the parties to submit papers in support of their positions. (Doc. 84).

16

Now before the Court are the parties’ filings regarding Mr. Porter’s challenges to the EEOC’s attorney’s

17

fees and costs award. The Navy contends that Mr. Porter’s claim should be reviewed under the

18

deferential standard set forth in the Administrative Procedures Act (“APA”) and that under this standard

19

the EEOC’s decision should be affirmed. (Doc. 87-1). The Navy further argues that even if the APA

20

does not apply, the EEOC’s award complies with the regulations and is amply supported by the record.

21

(Doc. 90).

22

Mr. Porter’s position is a bit confusing. (Docs. 86, 88). He challenges the EEOC’s decision

23

under the APA standard but also challenges the EEOC’s award under Title VII. He also requests the

24

Court to consider all of the points, authorities, and case law in his fee petition to the EEOC; his appeal

25

to the EEOC regarding attorney’s fees and costs; and other administrative filings. Also, included in Mr.

26

Porter’s pro se filings are two declarations from his former counsel, Ms. Wallace, which contain

27

extensive legal argument. (Docs. 86-1, 88-1). In light of Mr. Porter’s pro se status, this Court will

28

construe his filings liberally. See Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984) (the Ninth Circuit
3

1

“has long had a rule of liberal construction of pleadings presented by pro se litigants . . .”).

2
3
4
5

III. DISCUSSION
A. Applicability of APA
The Navy contends that this action is governed by the APA thus, this Court should review the
EEOC’s final decision in an appellate capacity under the APA’s deferential standard of review.

6

“[T]he APA does not provide that all ‘agency action’ is automatically reviewable.” Hall v.

7

EEOC, 456 F. Supp. 695, 700 (N.D. Cal. 1978). The APA provides judicial review for “final agency

8

action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; see also Ward v. EEOC,

9

719 F.2d 311, 313-14 (9th Cir. 1983). Here, an adequate remedy exists because the Ninth Circuit has

10

held that “42 U.S.C. §§ 2000e-5(f)(1) and 2000e-5(k) authorize a civil suit in federal court solely to

11

recover attorney’s fees for legal work done in administrative proceedings.” Porter, 603 F.3d at 1118.

12

Thus, review under the APA does not apply and this Court construes Mr. Porter’s pro se complaint as

13

a Title VII action for attorney’s fees and costs.

14

B. Title VII Action for Attorney’s Fees and Costs

15

Title VII provides for reasonable attorney’s fees to a prevailing party. 42 U.S.C. § 2000e-5(k).

16

A prevailing party need not succeed on all issues. “If the plaintiff has succeeded on any significant issue

17

in litigation which achieved some of the benefit the parties sought in bringing suit, the plaintiff has

18

crossed the threshold to a fee award of some kind.” Texas State Teacher’s Ass’n v. Garland Indep. Sch.

19

Dist., 489 U.S. 782, 791-92 (1989).1 “[T]he Supreme Court has adopted a two-pronged approach to the

20

calculation of a reasonable attorney’s fee under Title VII. A court must first calculate a lodestar figure

21

by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly

22

rate.” Davis v. City and County of San Francisco, 976 F.2d 1536, 1541 (9th Cir. 1992), opinion vacated

23

in part on other grounds on denial of reh’g, 984 F.2d 345 (9th Cir. 1993) (internal quotation marks

24

omitted). Next, “[a]lthough there is a strong presumption that the lodestar represents a reasonable fee,”

25

Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992), the Court may make adjustments based on

26
1

27
28

Texas State Teacher’s Ass’n, is a 42 U.S.C. § 1988 case. Both the Supreme Court and the Ninth Circuit have held
that the standards for determining a reasonable attorney’s fee under 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k) are the
same. Davis v. City and County of San Francisco, 976 F.2d 1536, 1541 n.1 (9th Cir. 1992). Thus, this Court will rely on
both § 1988 and § 2000e-5(k) cases in assessing Mr. Porter’s request for attorney’s fees. Id.

4

1

a variety of factors, see Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) citing

2

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Title VII suits are de novo. See Chandler v.

3

Roudebush, 425 U.S. 840 (1976).

4

1. Number of Hours Reasonably Expended

5

“In determining reasonable hours, counsel bears the burden of submitting detailed time records

6

justifying the hours claimed to have been expended. Those hours may be reduced by the court where

7

documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; [or] if

8

the hours expended are deemed excessive or otherwise unnecessary.” Chalmers v. City of Los Angeles,

9

796 F.2d 1205, 1210 (9th Cir. 1986) (internal citations omitted), reh’g denied, amended on other

10

grounds, 808 F.2d 1373 (1987). “The number of hours to be compensated is calculated by considering

11

whether, in light of the circumstances, the time could reasonably have been billed to a private client.”

12

Moreno, 534 F.3d at 1111.

13

Mr. Porter asserts that from August 13, 1998, until September 13, 2003, counsel worked 67.50

14

hours on his case. The bulk of these hours, 59.80, were worked prior to June 23, 2001. This is

15

significant because the regulations provide that:

16
17
18
19

Attorney’s fees shall be paid for services performed by an attorney after the
filing of a written complaint, provided that the attorney provides reasonable
notice of representation to the agency, administrative judge or Commission,
except that fees are allowable for a reasonable period of time prior to the
notification of representation for any services performed in reaching a
determination to represent the complainant . . .Written submissions to the
agency that are signed by the representative shall be deemed to constitute notice
of representation.

20
21

29 C.F.R. § 1614.501(e)(1)(iv). Counsel clearly provided notice of representation on June 23, 2001,

22

when she submitted an appellate brief on Mr. Porter’s behalf. Prior to this time however, nothing

23

indicates that Mr. Porter was represented by counsel. During the administrative appeal, counsel argued

24

that the Navy had notice of representation prior to June 23, 2001, because on May 9, 1997, the

25

Department cc’d her on a letter which transmitted Mr. Porter’s case to the EEOC. This does not

26

constitute reasonable notice of representation because the only reason counsel was cc’d on the letter was

27

because Mr. Porter cc’d counsel on his letter to the Department in which he requested a hearing before

28

the EEOC. Thus, the Department simply did the same thing in its response letter. In addition, the
5

1

hearing request was signed by Mr. Porter. There was no written submission signed by counsel.

2

To the extent Mr. Porter maintains that he is entitled to attorney’s fees for the time counsel

3

assisted him while he was proceeding pro se, this Court finds that he is not entitled to fees for this time.

4

As discussed above, the regulations only authorize attorney’s fees for services performed after the

5

“attorney provides reasonable notice of representation.” 29 C.F.R. § 1614.501(e)(1)(iv). The only

6

exception to this rule is for “services performed in reaching a determination to represent the

7

complainant.” Id. Counsel did not submit a notice of representation until she filed the appellate brief.

8

Thus, fees are not authorized for any time expended prior to the submission of the appellate brief. For

9

the same reasons, Mr. Porter is not entitled to the time counsel expended in preparing the appellate brief.

10

See Belding v. Dep’t of the Army, 1990 WL 1109607, *3 (Nov. 1, 1990) (finding that because it was

11

appellant’s brief on appeal which constituted notice of representation, counsel was not entitled to

12

services rendered prior to this notice except for work performed in determining whether to represent

13

appellant). Because counsel failed to provide reasonable notice of representation prior to June 23, 2001,

14

Mr. Porter is not entitled to attorney’s fees for the 59.80 hours worked prior to this time.

15

Mr. Porter contends that counsel worked 7.70 hours on his case after submitting her notice of

16

representation. This Court finds that these hours were reasonably expended on Mr. Porter’s case. This

17

Court also awards Mr. Porter 2.0 hours for the time it took counsel to make a determination regarding

18

representation. See Vincent v. Dep’t of the Army, 1996 WL 93801, *7 (Feb. 27, 1996) (recognizing that

19

the Commission has previously found that an attorney may reasonably expend up to two hours to

20

determine whether to represent a complainant). Accordingly, this Court finds that counsel reasonably

21

expended 9.70 hours on Mr. Porter’s case.

22

2. Reasonable Hourly Rate

23

A reasonable hourly rate is determined by considering the “experience, skill, and reputation of

24

the attorney requesting fees.” Chalmers, 796 F.2d at 1210. “Determination of a reasonable hourly rate

25

is not made by reference to rates actually charged [by] the prevailing party.” Id. Rather, “in determining

26

a reasonable hourly rate, the district court should be guided by the rate prevailing in the community for

27

similar work performed by attorneys of comparable skill, experience, and reputation.” Ingram v.

28

Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (per curiam). Declarations regarding the “prevailing
6

1

market rate in the relevant community . . . [are] sufficient to establish the appropriate [billing] rate for

2

lodestar purposes.” Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir. 1991). “Generally, the relevant

3

community is the forum in which the . . . court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.

4

1997). However, rates outside the forum may be used “if local counsel was unavailable, either because

5

they are unwilling or unable to perform because they lack the degree of experience, expertise, or

6

specialization required to handle properly the case.” Gates, 987 F.2d at 1405.

7

Here, the EEOC determined that a reasonable hourly rate for work performed in 2003 was $350.

8

During the administrative appeal, counsel requested an hourly rate of $375. She supported her request

9

with citations to two administrative decisions for hearings that occurred in San Francisco. In both cases

10

the administrative judge set counsel’s hourly rate at $375. The citations are unpersuasive. “While an

11

attorney’s prior fee award may bear on the selection of a reasonable fee in a later case . . . simply offering

12

the prior award is not enough.” Barjon, 132 F.3d at 502. In addition, the citations are inaccessible and

13

counsel did not attach copies of the decisions. Further, even if this Court were to accept the rate set forth

14

in these decisions, this rate reflects the prevailing market rate for San Francisco and not for Los Angeles

15

which is where the administrative appeal was decided. Likewise, counsel does not discuss whether local

16

counsel was unavailable which would make the San Francisco rate applicable, see Gates, 987 F.2d at

17

1405 (recognizing that rates outside the forum may be used if local counsel is unavailable), or whether

18

San Francisco and Los Angeles have similar market rates.

19

In counsel’s declarations to this Court, she submits two fee petitions from other cases. Counsel

20

alleges that the fee petitions show the historic progression of her hourly rate. Similar to the evidence

21

submitted during the administrative appeal, the fee petitions list various administrative decisions

22

awarding counsel various rates. These awards do not show that the rate charged was in line with the

23

prevailing market rate of the relevant community. See Carson v. Billings Police Dept., 470 F.3d 889,

24

891 (9th Cir. 2006) (When a party seeks an award of attorney’s fees, that party “has the burden to prove

25

that the rate charged is in line with the prevailing market rate of the relevant community.”).

26

Accordingly, this Court finds that $350 is a reasonable hourly rate for work performed by Ms. Wallace

27

in 2003.

28

Counsel also contends that Mr. Porter is entitled to counsel’s current market rate of $425 an hour.
7

1

The Ninth Circuit has long recognized that “district courts have the discretion to compensate prevailing

2

parties for any delay in the receipt of fees by awarding fees at current rather than historic rates in order

3

to adjust for inflation and loss of the use of funds.” Gates, 987 F.2d at 1406; see also Barjon, 132 F.3d

4

at 502 (“the district court may choose to apply either the attorney’s current rates to all hours billed or the

5

attorney’s historic rates plus interest”). Here, counsel’s declaration provides that she already received

6

the $3,395 awarded by the EEOC. (Doc. 86-1, p. 25). Counsel does not indicate when she received

7

payment. Accordingly, this Court is unable to decipher the extent of any delay and thus, cannot provide

8

compensation for the alleged delay in payment.

9

In sum, this Court finds that counsel reasonably expended 9.70 hours on Mr. Porter’s case. This

10

Court further finds that $350 is a reasonable hourly rate for work performed by Ms. Wallace in 2003.

11

Thus, Mr. Porter is entitled to $3,395 in attorney’s fees (9.70 hours times $350). Because the Navy

12

already paid this amount, no further action is necessary with regard to attorney’s fees.

13

3. Costs

14

Unless “a court order provides otherwise, costs - other than attorney’s fees - should be allowed

15

to the prevailing party.” FED . R. CIV . P. 54(d)(1). Whether to award costs is a matter within the district

16

court’s discretion. Ass’n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 591-92 (9th Cir.

17

2000) (en banc). “In exercising th[is] discretion, a district court must specify reasons for its refusal to

18

award costs.” Berkla v. Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002) (internal quotation marks

19

omitted).

20

The costs that may be awarded in an EEOC administrative proceeding are those authorized by

21

28 U.S.C. § 1920. See 29 C.F.R. § 1614.501(e)(2)(ii)(C) (incorporating § 1920 into the regulations).

22

This includes, but is not limited to, the cost of making copies, where the copies are necessarily obtained

23

for use in the case, as well as fees and disbursements for witnesses. See 28 U.S.C. § 1920(3), (4). Local

24

Rule 54-292(f)(11) allows the Court to tax other items it believes should be compensable “in the interest

25

of justice.”

26

Although a pro se litigant is not entitled to attorney’s fees, a pro se litigant is entitled to recover

27

actual expenses reasonably incurred to the extent an attorney could have received those expenses, this

28

includes costs that are included in a lawyer’s overhead. Burt v. Hennessey, 929 F.2d 457, 458-59 (9th
8

1

Cir. 1991). This also includes expenses incurred during the course of litigation which are normally

2

billed to fee-paying clients. Grove v. Wells Fargo Fin. California, Inc., 606 F.3d 577, 581 (9th Cir.

3

2010); see also Chalmers, 796 F.2d at 1216 n.7. Thus, a pro se litigant is entitled to receive

4

reimbursement for out-of-pocket expenses normally included in an attorney’s fees award such as travel,

5

courier, and copying costs. Davis, 976 F.2d at 1556.

6

Here, counsel requests $1,405.02 for costs incurred prior to June 23, 2001. Because counsel

7

incurred these costs prior to providing reasonable notice of representation, counsel is not entitled to these

8

costs. See 29 C.F.R. § 1614.501(e)(1)(iv). Counsel does not request any costs for expenses incurred

9

after June 23, 2001. Therefore, this Court finds that counsel did not incur any reimbursable costs.

10
11

Mr. Porter requests $1,610.34 for costs incurred while he was acting pro se. Specifically, he

12

requests reimbursement for his copying, postage, witness fee, and telephone expenses. He also requests

13

mileage and a per diem for time he spent traveling to meet with his attorney. Mr. Porter is not entitled

14

to the $531 he requests for mileage and the $260 he requests for per diem. Mr. Porter incurred these

15

costs on June 23, 2001, and September 13, 2001. He incurred these costs while traveling to meet with

16

his attorney to discuss and prepare his appeal. Thus, Mr. Porter did not incur these costs as a pro se

17

litigant.

18

Mr. Porter is entitled to the remaining $819.34 he requests for his copying, postage, witness fee,

19

and telephone expenses. Mr. Porter is entitled to $144.30 for his copying expenses because 28 U.S.C.

20

§ 1920(4) allows recovery of the cost of making copies where “the copies are necessarily obtained for

21

use in the case.” See also Local Rule 54-292(f)(5). Construing the record in a light favorable to the pro

22

se litigant, this Court finds that the copies were necessarily obtained for use in this case. Mr. Porter is

23

also entitled to the $600 he labels as witness fees because 28 U.S.C. § 1821 authorizes the recovery of

24

per diem, mileage, and subsistence costs for witnesses. See also Local Rule 54-292(f)(8). Finally, Mr.

25

Porter is entitled to the $55.04 he requests for postage costs and the $20.00 he requests in miscellaneous

26

phone charges, as these are the type of costs normally included in a lawyer’s overhead. See Burt, 929

27

F.2d at 458-59.

28

The following chart summarizes this Court’s findings with regard to costs:
9

1

Reimbursable costs incurred by counsel:

2

$0

Reimbursable costs incurred by Mr. Porter:

3

Mileage

$0

4

Per diem

$0

5

Copying

$144.30

6

Witness Fees

$600.00

7

Postage

$ 55.04

8

Misc. Phone Charges

$ 20.00

9

Total:

$819.34

10

Unfortunately, the above findings do not end this matter as the EEOC awarded the parties $1,000

11

in costs jointly without explanation and plaintiff has already received the $1,000 award. (Doc. 86-1, p.

12

25). The Navy acknowledges that Mr. Porter received more than he was entitled to under the law but

13

does not analyze the cost issue and does not request the Court to disturb the EEOC’s decision. Because

14

Mr. Porter has received $1,000 in costs and the Navy does not seek reimbursement for the amount paid

15

in excess of $819.34 this Court does not order Mr. Porter to pay the difference. If the Navy wishes to

16

recover the $180.66 it is entitled to, it may file a motion stating its position. Any such motion is due

17

within seven (7) calendar days of electronic service of this order.

18

C. Costs and Fees for the Instant Action

19

Neither Ms. Wallace nor Mr. Porter are entitled to attorney’s fees or costs for the time spent on

20

the instant action because plaintiff is not a prevailing party. See 42 U.S.C. § 2000e-5(k) (“the court . .

21

. may allow the prevailing party . . . a reasonable attorney’s fee . . . ).

22

IV. CONCLUSION AND ORDER

23

For the reasons discussed above, this Court DENIES Mr. Porter’s motion to increase the fees and

24

costs previously awarded by the EEOC. This Court finds that Mr. Porter is entitled to $3,395 in

25

attorney’s fees. Because the Navy already paid this amount, no further action is necessary. This Court

26

further finds that Mr. Porter is entitled to $819.34 in costs. Because the Navy already paid $1,000 in

27

costs and does not seek reimbursement for the difference, no further action is necessary unless the Navy

28
10

1

wishes to recover the $180.66 it is entitled to. If the Navy wishes to recover the difference in costs, it

2

shall file a motion stating its position within seven (7) calendar days of electronic service of this order.

3

No further action by Mr. Porter is necessary, unless this Court orders otherwise.

4
5
6
IT IS SO ORDERED.

7
8
9

Dated:

April 4, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11