Attorneys Fee Award Imposed Against TSA

The EEOC’s Office of Federal Operations (OFO) recently upheld an administrative judge’s decision awarding a complainant $227,311.87 in attorney’s fees and costs. Myra Swanson, Complainant v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency, EEOC Appeal No. 07201o0026 (March 8, 2011).

Swanson brought a discrimination case alleging that TSA subjected her to harassment based on sex, disability and in reprisal for prior protected EEO activity. The parties settled on the eve of the hearing in August 2009, but “agreed that the AJ would issue a decision on the amount of attorney’s fees and costs owed to the complainant as the prevailing party.”

The complainant’s attorneys had originally submitted a request for $305,197.08 in attorneys fees and costs, but after a review of the billing records and other supporting materials, and after a review of affidavits regarding the prevailing market rates for lawyers in their locale, the AJ approved the reduced total of $227,311.87.

The agency had demanded a 50 percent across-the-board reduction of the award, but the AJ rejected that approach. Rather, she made a “particularized and careful analysis of the reasonableness of the litigation costs expended to represent the complainant” and rejected the agency’s suggested approach “due to its inherent unfairness to complainant’s counsel who represented the complainant with exceptional diligence and tenacity against the agency’s overwhelming power, force, resources, obstructionism and failure to cooperate.”

The OFO applies a deferential standard in reviewing fee awards and found no cause to disturb the AJ’s ruling here. The OFO paid special heed to the AJ’s findings that the litigation was “extremely complex” and that the level of research and writing required was “extraordinary in all respects.” The AJ noted that the case had required substantial attorney time, briefing and litigation workup, and generated voluminous working documents in her own files. The OFO also observed that the AJ’s line-item reductions of the requested fee award ultimately resulted in the equivalent of a 25 percent across-the-board reduction, and suggested that this reduction “fairly addresses the agency’s expressed concerns” regarding the fee request.

This decision should serve as a warning to agencies that they cannot engage in obstructionist litigation tactics, but then later protest when the complainants seek appropriate attorneys fees incurred when counsel diligently pursue their EEO complaints. TSA is now also liable for additional attorney fees and costs incurred in bringing its OFO appeal.