Let’s say a federal employee initiates the EEO complaint process and she retains an attorney. Let’s also say that during the process the parties engage in mediation, or they proceed to a hearing, or the attorney deposes witnesses. Finally, let’s say that these proceedings – the mediation, the hearing, or the depositions – require that the attorney travel out of her office either within the same city, to a neighboring city (Baltimore and Washington, D.C., for example, or Stockton, CA and San Francisco), or to a different state altogether.
If, after all of this work, the employee prevails on her complaint and receives relief either through a decision or a settlement, she will be entitled to recover the attorney fees reasonably incurred securing that relief. Included in those fees are the time expended by the attorney at the mediation, at the hearing, and taking the necessary depositions. We would assume, then, that the time the attorney spent traveling to these sites would also be fully reimbursed. If that’s your assumption, you’re wrong, according to the EEOC. Why the EEOC treats travel time differently than other attorney time is a question without an easy answer.
The origin of the EEOC’s thinking on this issue begins in 1988, with its decision in Hooper v. DLA, EEOC Appeal No. 01873384 (May 6, 1988). In Hooper, the Agency issued a final decision finding that the employee had been the victim of discrimination when he was not promoted. The employee applied for attorney fees, and the Agency reduced the time spent in travel by 50%. The employee appealed, and this is how the EEOC decided the issue:
Travel – The Commission has in the past held that attorneys are not entitled to fees for time spent in travel. See William S. Avery v. Tennessee Valley Authority, EEOC Appeal No. 01831755 (October 18, 1985). However, federal case law supports reimbursement for travel time at the full hourly rate, Henry v. Webermeier, 738 F.2d 188 (7th Cir. 1984), or (more commonly) at a reduced rate. See United States v. Marengo County Commission, 667 F. Supp. 786 (S.D. Ala. 1987), McPherson v. School District #186, 465 F. Supp. 749 (S.D. Ill. 1978). In light of the case law and because we find the agency’s 50 percent reduction in the hourly rate to be reasonable, the Commission affirms the agency’s award of $47.50 per hour for travel.
Since Hooper, which was decided almost 30 years ago, the EEOC has adhered to its “50% rule” without any further analysis. See Santiago v. DHS, EEOC Appeal No. 0720100038, p. *13 (March 2, 2011) (“the Commission has taken the position that the rate for an attorney’s travel time should be reduced by 50 percent”); Brown v. Justice, EEOC Appeal No. 0120072877, footnote 6 (February 25, 2009) (“[t]he Commission has long held that the attorney’s hourly rate should be reduced by fifty percent (50%) for travel time”).
What the EEOC has never done, not in Hooper and not since, is explain why “the rate for an attorney’s travel time should be reduced by 50%”. The Supreme Court has articulated some principles underlying the calculation of attorney fees in civil rights cases in which the plaintiff has prevailed through decision or settlement. First, the purpose of awarding attorney fees to plaintiffs who prevail is to ensure “effective access to the judicial process for persons with civil rights grievances”. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). This has been uniformly interpreted to mean that because many discrimination plaintiffs lack the finances to pay qualified attorneys to take their case, competent attorneys are not likely to take these kinds of cases if they cannot be assured of receiving an award if they prevail.
The second principle is that because an award of attorney fees is paid by the employer, the successful attorney is supposed to ensure that all of the hours claimed were reasonably expended, and were not duplicative, redundant, or unnecessary. As the Court put it,
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. “ . . . Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.”
Hensley, 461 U.S. at 434.
Considered in this context, the EEOC’s decision to reduce an attorney’s travel time is difficult to understand. An attorney who travels from one place to another, regardless where the other place is and how much time it takes to get there and back, would be working on matters for which she can bill (and be paid) if she remained in the office. That is the underlying reason why attorneys bill their clients for their travel time: not because they are working while they are traveling, but because they would be working for this or another client if they were not traveling.
Surprisingly, this precise point was made in the very cases, McPherson and Henry, which the EEOC cited in its 1988 decision approving the reduction. In McPherson, the district judge believed that a 50% reduction was appropriate notwithstanding his observation that an attorney was surrendering the opportunity to earn fees during any travel time:
The fee statute clearly intends for an attorney to be compensated for all time reasonably spent on the case. This follows from the fact that a lawyer’s time is his stock in trade. Mr. Julian states in his affidavit that he was working on the case while commuting. Even if he were not, an argument can be made that an attorney should be compensated for travel time since he must be away from the office and cannot utilize the time for other billable matters.
465 F.Supp. at 758. Despite this unassailable logic, the judge agreed to a 50% reduction for no apparent reason.
An additional difficulty with the Commission’s reliance upon McPherson is Henry, which the Commission cited as expressing the view that travel time should be reimbursed at the “full hourly rate”. In Henry, the Seventh Circuit (Judge Posner) held that:
When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time, except when they are able to bill another client for part of the travel time (a lawyer might do work for client A while flying on an airplane to a meeting with client B). And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorneys’ fees. . . .
The presumption, which the defendants have not attempted to rebut, should be that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer’s normal working time.
738 F.2d at 194. The Seventh Circuit includes Illinois; McPherson was decided in the Southern District of Illinois, six years before the Seventh Circuit’s decision in Henry. The Commission’s casual analysis that Henry and McPherson cancel each other out is preposterous: after Henry, McPherson was no longer valid law.
There is no question that some courts have awarded only partial fees for travel time by successful attorneys. But that’s not the issue. With respect to federal employees, it is the job of the EEOC to ensure that the federal government does not discriminate against its employees. When a federal employee is able to prove to the EEOC’s satisfaction that she was the victim of discrimination or reprisal, it makes no sense for the very agency that is supposed to vindicate her rights to penalize her attorney by not fully compensating her for her efforts.