SUSAN ROYTEK, Complainant
HUTCHINSON TECHNOLOGY INC, Respondent
On May 25, 2001, an administrative law judge from the Equal Rights Division (Division) of the Department of Workforce Development issued a decision in this matter finding that the complainant was discriminated against with respect to her disability. The respondent was ordered to take certain remedial actions, including offering the complainant reinstatement to her former position, on an eight-hour shift, and making her whole for all losses in pay and benefits she suffered as a result of the discrimination against her. The respondent was also ordered to pay the complainant's reasonable attorney fees and costs. The respondent filed a timely petition for review by the Labor and Industry Review Commission (commission), and on January 28, 2002, the commission issued a decision affirming the administrative law judge's finding of discrimination and remedial order. The commission also ordered the payment of additional attorney fees and costs reasonably incurred in conjunction with the proceedings before the commission. The respondent petitioned for review of the commission's decision by the Eau Claire County Circuit Court, which affirmed the commission's decision and issued an order requiring the respondent to pay additional attorney fees and costs associated with the proceedings before it. The respondent has now exhausted all levels of appeal, and the commission's order stands as the final order in this matter.
The respondent has not submitted a compliance report, in spite of the fact that, in correspondence dated December 16, 2004, the commission specifically reminded it of its obligation to do so. The commission has, therefore, had to rely upon the correspondence of the parties to determine what steps have been taken to comply with its order. It is clear that significant factual issues exist with respect to the respondent's obligation to tender back pay and interest (1) to the complainant, which the commission is unable to resolve based upon the information before it. In addition, while the respondent apparently did extend an offer of reinstatement to the complainant, it is difficult to ascertain from the submissions of the parties whether or not additional issues exist with respect to the respondent's compliance with the reinstatement order. The respondent has requested a hearing on these matters, and the commission agrees that the satisfactory resolution of the outstanding compliance issues can best be achieved through the conciliation process or, if warranted, through further hearing.
By way of compliance with the attorney fees provision of the commission's order, the respondent has issued the complainant a check for the full amount of attorney fees and costs ordered through the date of the commission's decision. However, it appears that the additional attorney fees and costs ordered by the circuit court have not yet been paid. In addition, the complainant's attorneys have submitted a request for the payment of additional attorney fees and costs in conjunction with the proceedings before the court of appeals and supreme court. Although the respondent has also requested a hearing on the issue of attorney fees, there are no outstanding evidentiary issues regarding fees that require a hearing, and the commission agrees with the complainant that it has sufficient information before it to issue an order with respect to attorney fees and costs.
Based on the above, the commission issues the following:
1. The respondent shall pay to the complainant reasonable attorney fees and costs associated with the proceedings subsequent to the issuance of the circuit court's decision, through October 29, 2004, the date on which the Wisconsin Supreme Court issued its denial of the respondent's request for reconsideration, in the total amount of $41,535.00. A check in that amount shall be made payable jointly to the complainant and Lisa A. Wiebusch and delivered to Ms. Wiebusch.
2. This matter is remanded to the Division for further proceedings as warranted with regard to the outstanding compliance issues.(2)
Dated and mailed February 15, 2005
roytesu . rpr : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The administrative law judge awarded $20,401.73 in attorney fees and costs, and the commission ordered another $3,082.00 for the reasonable attorney fees incurred through the issuance of the commission's decision. The administrative law judge's and commission's fee orders are both final and have been paid. The circuit court judge awarded an additional $7,016.12 in attorney fees and costs. That order is also final, but has apparently not yet been paid. The complainant's attorneys have requested an additional $54,290.00 in fees, plus $2,800.00 in costs for their work at the appellate level.
Hourly rate
In calculating reasonable attorney fees, the most useful starting point is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This figure is commonly referred to as the "lodestar" figure. Hensley v. Eckerhardt, 461 U.S. 424, 31 FEP Cases 1169 (1983). A reasonable fee is calculated according to the prevailing market rates in the relevant community. It is anticipated that, along with the fee petition, the attorney requesting payment will submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determined based on such affidavits is normally deemed to be reasonable.
There are two attorneys involved in this matter on behalf of the complainant: Attorney Lisa Wiebusch, and Attorney Rose Allen. At the onset of this litigation Attorney Wiebusch's hourly rate was $150.00 and Attorney Allen's was $125.00. In January of 2001 the attorneys raised their hourly rates to $175.00 and $150.00, respectively. Over the respondent's objection, the administrative law judge awarded attorney fees at the rates requested. The administrative law judge noted that the amount of the increase was not so great as to put the rates out of line with what he had seen recently, and found it to be reasonable. At the commission level, the hourly rates requested for work performed remained the same, $175.00 for Attorney Wiebusch and $150.00 for Attorney Allen, nor had the hourly fees changed when the complainant submitted her attorney fee petition to the circuit court. The last item included on the fee request to the circuit court was for work performed on October 18, 2002.
However, in the fee request submitted to the commission for work before the court of appeals and supreme court, which began in November of 2002, Attorney Wiebusch's time is billed at $250.00 an hour and Attorney Allen's at $200.00. This represents an hourly increase of $75.00 and $50.00 respectively, which amounts to approximately a forty-five percent increase for Ms. Wiebusch and a thirty-five percent increase for Ms. Allen.
The respondent has filed an objection to the hourly fee requested, indicating that the complainant's attorneys failed to demonstrate why rates rose so precipitously in the community in the middle of 2002, and suggesting that the complainant's attorneys' rates should remain at 2001 levels. The complainant's attorneys respond that the legal services agreement which the complainant signed allowed for periodic rate adjustments, and that rates were raised because of the increasing complexity involved as the case made its way up through the supreme court.
However, in evaluating fees, the criterion to consider is not what the parties agreed on, but what is reasonable. See, Morgado v. Civil Defense Corps., 32 FEP Cases 12, 20 (11th Cir. 1983). The fact that the complainant may have agreed to a fee increase does not dispose of the matter. Further, the complainant has cited no precedent in support of her assertion that it is reasonable to charge differential rates depending upon which court she is appearing before, and the commission is unaware of any such precedent. Any increase in the complexity of the case can be accounted for by the fact that the attorney is permitted to bill for all work hours reasonably expended, including the time spent preparing for oral argument and the additional time that may be necessary to comply with the more stringent filing requirements at the court of appeals and supreme court levels.
In evaluating the reasonableness of the fee increase, the question to decide is not whether the complainant agreed to an increase or whether the work became more complex, but whether the complainant's attorneys demonstrated that the hourly rate requested is consistent with the prevailing market rate in the community for similar services. The complainant's attorneys have submitted only one affidavit in support of this proposition, and the commission finds it of little value. Although Ms. Wiebusch and Ms. Allen practice law in Hudson, WI, the affidavit submitted is from an attorney who practices law in St. Paul, MN. While Hudson and St. Paul may be geographically proximate to one another, the complainant's attorneys have not demonstrated that it is appropriate to compare the rates charged by attorneys in Hudson, WI, with those charged by an attorney practicing in a major metropolitan area located in a different state, nor have they explained why they did not obtain any affidavits from attorneys practicing in the Hudson area.
Further, although the affidavit purportedly shows a $255.00 hourly billing rate, the affiant's statement "[m]ost recently when it was necessary to submit my attorney's fees, my time was billed at the rate of $255.00 an hour" does not indicate that she habitually charged $255.00 an hour for her services, and the complainant's attorneys have explained that the $255.00 hourly rate was the fee submitted when prevailing at the appellate level in an employment discrimination case in 2002. Thus, the $255.00 hourly rate mentioned in the affidavit does not reflect what the affiant actually charged her clients in 2002, but was the rate requested after securing a favorable judgment. The affidavit -- which, incidentally, fails to indicate whether the court actually ordered payment of fees at the rate requested -- does not persuade the commission that $200.00 and $250.00 an hour are the prevailing hourly rates for attorneys of comparable skill, experience and reputation providing similar services in Hudson, WI.
In 2001, the administrative law judge found that $175.00 and $150.00 were reasonable hourly rates for the complainant's attorneys in this matter, and the commission sees no reason to believe that these rates rose dramatically in November of 2002. The commission's conclusion in this regard is supported by the findings contained in a survey conducted by the State Bar of Wisconsin,(3) which indicate that in 2001 the median hourly rate for an attorney practicing in the Northwest portion of the state was $120.00, and that attorneys practicing in cities with populations ranging from 5,000-24,9994 (4) charged a median rate of $135.00 an hour. The survey also indicated that in 2001 average hourly rates increased about five percent from 1999, and that in the six-year span between the previous two surveys, conducted in 1993 and 1999, rates rose about twenty percent on average. The survey concluded that there was a slowing of the rate increase in 2000-2001 as compared to the previous six years.
Attorney Wiebusch's hourly rate in 2001 was $175.00, significantly higher than the median hourly rate reflected in the State Bar's survey for attorneys in her area of the state and in cities of similar size, and represented about a fifteen percent increase over the $150.00 rate charged the previous year, well above the average five percent rate increase over two years seen among attorneys responding to the survey. Attorney Allen's hourly rate, although not above the median, increased twenty percent in 2001. Considering that, according to the bar survey, the average Wisconsin attorney increased his or her rates by only twenty percent over a six-year period and by only five percent between 1999 and 2001, the fifteen and twenty percent increases in 2001 were quite significant, and it is hard to imagine any justification for increasing those rates by another thirty-five to forty percent less than two years later.
Indeed, it is clear from the complainant's attorneys' own statement that there was no general increase in fees in November of 2002, but that they simply felt they could request more in conjunction with this case. The commission disagrees, and believes that the hourly rates set by the administrative law judge remain appropriate. The commission, therefore, declines to adopt the $200.00 to $250.00 amounts requested as a reasonable hourly rate, but will premise its "lodestar" figure on the hourly rates originally awarded by the administrative law judge.
Number of hours reasonably expended
The attorney fee applicant bears the burden of documenting the appropriate hours expended. Counsel should at least identify the general subject matter of time expenditures. Olson v. Phillips Plating (LIRC, Feb. 11, 1992). The complainant's attorneys have met their burden in this regard by submitting a five-page dated and itemized fee statement. The complainant's attorneys request compensation for a total of 236.7 work hours.
The respondent objects to the number of hours requested as excessive. It contends that, because the commission assumed responsibility for handling the matter, and fully briefed the matter at all levels, additional briefing and oral argument by the complainant's personal attorney was unnecessary, particularly where the arguments made in her briefs were not materially different than those made by the commission. The respondent, therefore, maintains that the complainant should be denied any fees for the time expended briefing and preparing her oral argument. Although the respondent concedes that it was necessary for the complainant's attorney to communicate with her client and to review the filings of other parties, it asserts that all other expenses should be denied.
The respondent's argument has already been considered and rejected by the Wisconsin Supreme Court. Richland School District v. DILHR, 174 Wis. 2d 878, 914-15, 498 N.W.2d 826 (1993). In Richland School District, a case involving the FMLA, the complainant had private representation and had assumed sole responsibility for representing his own interests in the proceedings before DILHR. At the court level, however, DILHR joined in to defend its administrative rules and its interpretation of the FMLA. The court held that, while DILHR's efforts coincided with the complainant's interests to a large extent, the complainant had a right to participate in the judicial review proceedings pursuant to Wis. Stat. § 227.53(1)(d), both to protect his personal interests and to present the unique perspective of an employee covered by the FMLA. The court stated that the complainant was "not required to stand to the side and let his hopes ride on DILHR's performance," and concluded that the complainant's participation in the court proceedings was neither unwarranted nor redundant.
Although the respondent attempts to distinguish Richland School District from the instant case, reasoning that in Richland the complainant's brief contained arguments that were materially different from those raised by DILHR, the resolution of the case did not turn on that fact. As the court specifically noted, the statute guaranteed the complainant the right to participate in the judicial review, and he was not required to rely on the agency to represent his interests. Moreover, as the complainant points out in her letter to the commission, because the complainant and the commission were required to submit their briefs at the same time, the complainant had no way of knowing what specific arguments the commission would be relying on. The commission believes that the complainant is entitled to attorney fees for the time reasonably spent drafting the briefs and arguing before the supreme court.
In the alternative, the respondent argues that, even if the commission concludes the complainant is entitled to attorney fees for the proceedings before the court of appeals and supreme court, the fees requested are excessive where the matter had already been briefed several times below. However, the complainant had to prepare a new brief at every level, and the respondent has not established that the court of appeals or supreme court briefs duplicated those submitted below. The commission notes that, with regard to the supreme court brief, the complainant's attorneys had to expend additional time responding to arguments that were raised for the first time in the amicus brief filed by WMC. Moreover, if the respondent is of the opinion that the amount of time expended on briefing was excessive, then it was the respondent's obligation to suggest an amount of time that would be more reasonable. The respondent has not done so. In fact, the respondent has identified only three specific items on the complainant's fee statement which it believes are unwarranted or excessive, and which it contends are not payable: 10.5 hours billed by Attorney Wiebusch to "review amicus brief and brief of appellant's and research and read cited cases and authority;" .2 hours for "phone conference with Attorney Schoenberger (re: status as he has pending cases)," and; .3 hours for "phone conference with Mell Hoffman re: bankruptcy trustee wanted status." Regarding the first item, the commission does not believe that 10.5 hours is an inherently unreasonable amount of time to expend reviewing two separate briefs and reading the numerous cited cases, in preparation for drafting a responsive brief, nor has the respondent suggested what amount of time it believes would be more appropriate. With respect to the two telephone calls, however, the commission agrees with the respondent that, notwithstanding the explanation provided by the complainant's attorneys, these calls were not necessary to the litigation of the case at hand and need not be paid by the respondent in conjunction with these proceedings.
The respondent has failed to identify additional charges which it feels are excessive or unwarranted, and has provided the commission with no guidance as to how many hours it believes would have been reasonably expended on this matter. The party challenging fees must do more than simply object: it should explain specifically why it believes the fees are excessive and propose a more reasonable alternative. In this case the complainant's attorneys have met their burden of documenting the hours expended on this matter, and the commission does not regard their request as inherently unreasonable given the nature of these proceedings. In the absence of a more specific objection from the respondent, the commission declines to order further deductions.
Subtracting .5 hours for the telephone calls referenced above, as well as .9 hours requested for services performed subsequent to the issuance of the final decision in this matter,(5) the commission finds a total of 131.6 reimbursable hours for Attorney Wiebusch and 97.7 reimbursable hours for Attorney Allen. The attorney fee statement also contains a request for compensation for 6 hours of work by another attorney at the firm, Michael Waterman, who assisted with the preparation for oral argument, at the hourly rate of $250.00. The respondent has not challenged this request. Using the 2001 hourly rates of $175.00 an hour and $150.00 an hour, and assuming that Attorney Waterman's hourly rate would have been similar to Attorney Wiebusch's, the commission concludes that the total amount of reasonable attorney fees for the complainant's attorney's efforts in conjunction with the appellate proceedings in this matter is $38,735.00.
Costs
The complainant's attorneys request an additional $2,800.00 in costs at the appellate level for items including postage, telephone calls, faxes, photocopying, mileage, and hotel bills. The respondent has not raised any objection to this request, and the commission sees no reason to disallow it. It, therefore, has ordered an additional $2,800.00 for the complainant's costs in conjunction with the appellate proceedings.
cc:
Attorney Lisa A. Wiebusch
Attorney Carol S. Dittmar
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