BEFORE THE IOWA CIVIL RIGHTS COMMISSION
DIANE HUMBURD, Complainant,
VS.
MARY A. HARLAN and VIRGIL G. HARLAN
Respondents.
CP # 03-85-12695
SUPPLEMENTAL PROPOSED DECISION AND ORDER
ON THE AWARD OF ATTORNEYS FEES
FINDINGS OF FACT
1. The proposed decision
and order in this matter, which was adopted by the Commission's
Order of September 28,1989, provided that the Complainant is to
be awarded attorneys fees. This order left open the issue of what
amount of fees were to be awarded. In accordance with paragraph
G on page 41 of the decision, the parties were required to:
"submit a written stipulation
stating the amount of the attorneys fees to be awarded Complainant
Humburd's attorney" within 20 calendar days of the date of
this order. "if any of the parties cannot agree on a full
stipulation to the fees, they shall so notify the Commission and
an evidentiary hearing on the record shall be held by the Administrative
Law Judge for the purpose of determining the proper amount of
fees to be awarded."
2. No such stipulation nor
any such notification has been submitted to the Commission. Therefore,
the parties were given notice of a telephone scheduling conference
to be held in order to determine whether any of the parties were
interested in participating in a hearing on the attorneys fees
award or whether they wished to waive such a hearing and allow
an award to be made on the record established so far. An order
was issued informing the parties and their respective attorneys
that, if they failed to inform the Administrative Law Judge in
writing of the telephone number at which they could be reached
for the conference, they were waiving their right to participate
in the scheduling conference. The parties were also informed that,
in the event neither of the Respondents contacted the Administrative
Law Judge, a hearing would not be held and the award would be
made based on the record established to date, unless either the
Commission or the Complainant objected to such procedure.
3. Neither the Respondents
nor the Complainant contacted the Administrative Law Judge by
letter to inform him of the telephone number at which they could
be reached. Consequently, the scheduling conference was not held.
Neither the Commission, the Respondents, nor the Complainant objected
to making the award of attorneys fees based on the record established
so far. Therefore, the award of attorneys fees is being
made based on the established record which consists of an Affidavit
of Time Expended In Support of Attorneys Fees filed by the Complainant's
attorney (hereinafter "Affidavit").
4. The above procedure was
followed because the Administrative Law Judge was aware that neither
of the Respondents had filed an appeal or any exceptions to the
proposed decision in this case. In the event neither of the Respondents
were interested in challenging the attorneys fees award, it would
be a futile additional expense to schedule and conduct an attorneys
fees hearing at which neither of the Respondents appeared unless
the Complainant wished to present additional evidence on this
issue. By following this procedure, the Respondents and the Complainant
were given an opportunity to express their interest, if any, in
an attorney fees hearing and the Commission was able to avoid
the additional expense and waste of time of opening an attorney
fees hearing at which none of the parties appeared. As the Commission's
decision and the notice of the telephone scheduling conference
made clear, an attorneys fees hearing would have been scheduled
if any interest in one had been shown by any of the parties.
5. The Affidavit presents
a request for fees at the rate of seventy-five dollars ($75.00)
per hour for a total of 27.30 hours. The Notice of Hearing in
this case was issued on May 17, 1988. The Affidavit indicates
that the Complainant's attorney seeks compensation for 5.0002
hours of services in regard to this matter for services rendered
after May 17, 1988, and for 22.2998 hours for services rendered
on or before May 17, 1988.
6. The Affidavit provided
is reasonably detailed, giving the date of each service rendered,
a summary of the service provided, and the time expended is given
in ten minute increments expressed in fractions of the hour to
within one ten thousandth of an hour. For example, ten minutes
or one-sixth of an hour is expressed as .1667 hours.
7. The only hours which
might be questioned as not being reasonably expended were the
total of four hours requested for the public hearing. This was
the total length of the hearing. If the Complainant's attorney
had borne the burden of presenting the case, or shared that burden
in approximately equal portions with the Assistant Attorney General,
then compensation for all four hours might have been reasonably
justified. In this case, however, the Administrative Law Judge
was informed in advance by both the Complainant's attorney and
the Assistant Attorney General, during conversations concerning
scheduling, that the Assistant Attorney General would be presenting
the case alone. This is essentially what happened during the case.
(Tr. at 33-36). Nonetheless, the Complainant's attorney did confer
with the Assistant Attorney General and undoubtedly had some input
on questions
asked by the Assistant Attorney General during the course of the
hearing. Therefore the request for compensation for four hours
for the hearing should not be totally denied, but should be reduced
to one hour. To permit compensation for the full four hours would
be to permit the billing of hours which are excessive, redundant,
or otherwise unnecessary, All other hours requested in the Affidavit
were hours reasonably expended.
8. The fee of $75.00 per
hour is a reasonable hourly fee. This hourly fee, when multiplied
times the number of hours reasonably expended, 24.30 hours, results
in a total fee of $1822.50.
9. The results obtained through this litigation include an award of $4,400.00 in emotional distress damages and $2,640.00 in back pay. In addition, the Complainant obtained an order requiring the Respondents to cease and desist their discriminatory practices and to indicate that they were an equal opportunity child care provider in all future print advertising. These constitute excellent results in a public accommodations case.
CONCLUSIONS OF LAW
1. The Iowa Civil Rights
Act allows the award of "reasonable attorneys fees"
as part of the remedial action which the Commission may take in
response to the Respondents' discriminatory practices. Iowa Code
601 A.1 5(8) (1989). Attorneys fees can only be awarded to complainants
when discrimination has been proven. See Id.
2. An award of attorneys
fees may be made in the absence of a separate evidentiary hearing
where the opportunity for an attorneys fees hearing has
been provided and all parties have elected to not take
advantage of the opportunity. See Rouse v. Iowa Department
of Transportation, 408 N.W.2d 767, 768 (Iowa 1987).
3. Although Federal court
decisions applying Federal anti- discri m i nation laws are not
controlling in cases under the Iowa Civil Rights Act, Franklin
Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d
829,831 (Iowa 1978), they are often relied on as persuasive authority
in these cases. Iowa State Fairgrounds Security v. Iowa Civil
Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions
of the Supreme Court of the United States are entitled to particular
deference. Quaker Oats Company v. Cedar Rapids Human Rights
Commission, 268 N.W.2d 862, 866 (Iowa 1978).
4. Prior Commission decisions
have held that attorneys fees shall be awarded only for
services rendered after the date when the Notice of Hearing is
issued. E.g. Cheri Dacy, 7 Iowa Civil Rights Commission
Case Reports 17, 25 (1985). The only rationale stated to support
this holding is that "the contested case commences when the
Notice of Hearing is delivered." Id. While
this is a correct statement of law, there is absolutely no authority,
statutory or otherwise, other than these past Commission decisions,
to support the proposition that attorneys fees awards should be
limited to the period commencing with the issuance of the Notice
of Hearing.
5. The reason for awarding
attorneys fees to prevailing complainants in contested cases under
the Iowa Civil Rights Act is the same as that for awarding attorneys
fees to prevailing plaintiffs in civil actions brought under the
Act, i.e. "to ensure that private citizens can afford to
pursue legal actions necessary to advance the public interest
vindicated by the policies of the civil rights acts." Ayala
v. Center Line, Inc., 415 N.W.2d 603, 605 (Iowa 1987)(citing
Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-02,
88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265-66 (1968)). Therefore,
a prevailing complainant "should ordinarily recover an attorneys
fee unless special circumstances would render such an award
unjust." Newman v. Piggie Park Enterprises,
390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)(emphasis
added). This "special circumstances" exception has been
narrowly construed by the courts. Schlei & Grossman, Employment
Discrimination Law 1468 (2d ed. 1983).
6. The practice of denying
attorneys fees for services rendered by a private attorney for
a complainant during the investigation and conciliation stages
is in direct contradiction to the public policies identified in
Ayala. Such practices will tend to discourage the private
bar from assisting private citizens in civil rights cases at the
investigation and conciliation stages. This practice effectively
bars those victims of discrimination who cannot afford to pay
attorneys fees from obtaining legal representation at these stages
of the complaint process.
7. The timing of the provision
of services by an attorney for a prevailing complainant, that
is their being rendered at the investigation and conciliation
stages, as opposed to any other stage of the complaint process,
is not a special circumstance rendering the award of attorneys
fees unjust. On the contrary, the value of the services of an
attorney for the Complainant at the investigation and conciliation
stages of state administrative civil rights processes has been
recognized by the United States Supreme Court: "Representation
by a private attorney thus assures development of a complete factual
record at the investigative stage .... Retention of private counsel
will help assure that . . . rights are not compromised in the
conciliation process." New York Gaslight Club, Inc. v.
Carey, 447 U.S. 54, 70, 100 S.Ct. 2024, 64 L.Ed.2d 723,
738 (1980). Indeed, a complainant seeking attorneys fees under
Title VII of the Civil Rights Act of 1964 may recover attorneys
fees in Federal district court not only for services rendered
during the Federal judicial proceedings but also for services
performed during state administrative civil rights proceedings,
including services performed at the investigation and conciliation
stages. Id. The practice of denying the award of reasonable
attorneys fees to successful complainants for work performed during
the complaint process prior to issuance of the notice of hearing
is itself anomalous, unjust, and contrary to public policy.
8. For the reasons stated
above, the holding set forth in the Commission's Decision
in the Cheri Dacy case, that attorneys fees shall be
awarded to successful complainants only for services rendered
after the date when the Notice of Hearing is issued, is hereby
expressly overruled. Commencing with this decision, it shall
be the practice of the Commission to award reasonable attorneys
fees to successful complainants for services performed at all
stages of the administrative complaint process in accordance with
the standards set forth by the applicable case law.
9. The amount of the attorneys
fee to be awarded depends on the facts of each case. Hensley
v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L.Ed.
2d 40, 48 (1983). Where, as here, agreement on the attorneys fees
issue has not been reached, the successful complainant bears the
burden of establishing the amount of her attorneys fees by "documenting
the appropriate hours expended and hourly rates." Id.,
461 U.S. at 437, 76 L.Ed. 2d at 53. The complainant's attorney
is not required to document each minute of his time in great detail,
but should identify the general subject matter of his time expenditures.
Id. & n.12. This burden has been met here. See Findings
of Fact Nos. 5 & 6.
10. "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id., 461 U.S. at 433, 76 L.Ed. 2d at 50. Hours that were not "reasonably expended" should be excluded from this calculation. Id.
11.
Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, 'billing judgment' is an important factor in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary."
Id., 461 U.S. at 434, 76 L.Ed. 2d at
50-51 (Quoting Copeland v. Marshall, 205 U.S. App. D.C.
390, 401, 641 F.2d 880, 891 (1980)(en banc)(emphasis in original)).
12. This "lodestar"
calculation of reasonable hours times a reasonable rate may be
further adjusted either upward or downward based on other factors,
including the results obtained. Id., 461 U.S. at 434,
76 L.Ed. 2d at 51; Schlei & Grossman, Employment Discrimination
Law: Five Year Cumulative Supplement 554 (1989). Where, as
here, the case presents only a single claim, the Commission "should
focus on the overall relief obtained by the [complainant] in relation
to the hours reasonably expended on the litigation." Hensley
v. Eckerhart, 461 U.S. at 435, 76 L.Ed. 2d at 51-52. An award
of a fully compensatory fee, including compensation for all hours
reasonably expended during the litigation, should be made when
the complainant has obtained excellent results. Id., 461
U.S. at 435, 76 L.Ed. 2d at 52. The complainant who has obtained
substantial remedies should not have the fee reduced because the
Commission did not adopt each contention asserted. Id.,
461 U.S. at 440, 76 L. Ed. 2d at 55.
13. Under the legal standards set forth above, the Complainant should receive a fully compensatory attorney's fee award, based on the lodestar calculation of hours reasonably expended times the reasonable hourly rate, and considering the excellent results obtained in this case, of one thousand eight hundred twenty-two dollars and fifty cents ($1822.50). See Findings of Fact Nos. 5-9: Conclusions of Law 9-12.
DECISION AND ORDER
IT IS ORDERED, ADJUDGED, AND DECREED that:
A. The Complainant, Diane Humburd, is entitled to a judgment of one thousand eight hundred twenty-two dollars and fifty cents ($1822.50) against Respondents Virgil G. Harlan and Mary A. Harlan for the fees of her attorney Herbert Rogers, Sr.
Signed this the 21 st day
of November, 1989.
DONALD W. BOHLKEN
Administrative Law Judge
Iowa Civil Rights Commission
211 E. Maple
Des Moines, Iowa 50319
515-281-4480
Copies to:
Diane Humburd
2516 E. 36th Court
Des Moines, Iowa 5031
Mary A. Harlan
1907 - 62nd Street
Des Moines, Iowa 50311
Virgil G. Harlan
1907 - 62nd Street
Des Moines, Iowa 50311
Herbert Rogers, Sr.
3939 Grand Avenue
Des Moines, Iowa 50312
Michael Jankins
Murray, Davoren, & Jankins
2323 Grand
Des Moines, Iowa 50312
Rick Autry
Assistant Attorney General