The U.S. Equal Employment Opportunity Commission
ATTORNEY'S FEES AND COSTS
CONTENTS OF FEE APPLICATION AND PROCEDURE FOR
In federal EEO law, there is a strong presumption that a complainant who prevails in
whole or in part on a claim of discrimination is entitled to an award of attorney's fees and
costs. More specifically, complainants who prevail on claims alleging discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation
Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and
costs, unless special circumstances render such an award unjust. 29 C.F.R.
1614.501(e)(1). (Complainants prevailing on claims under the Age Discrimination in
Employment Act of 1967, as amended, and the Equal Pay Act of 1963, as amended, are
not entitled to attorney's fees at the administrative level.) Only where a Title VII or
Rehabilitation Act complainant rejects an offer of resolution made in accordance with
1614.109(c) and does not obtain more relief than the agency had offered, or in the
rarest of other circumstances, might an agency limit or deny an award of fees.
This Chapter of the Management Directive sets forth guidance for use by persons seeking
an award of attorney's fees and costs, attempting to determine entitlement to fees and
costs, or seeking to limit an award. In the Chapter, the Management Directive defines
"prevailing party," discusses a prevailing party's entitlement to fees, notes who may be
entitled to an award of fees and what costs may be recoverable, notes how fees are
computed, and describes the contents of a fee petition and the procedure for its
submission and determination. This guidance applies only to the federal sector
- DETERMINATION OF PREVAILING PARTY STATUS
- A "prevailing party," within the meaning of Section 706(k) of Title VII, 42 U.S.C.
2000e-5(k), is a complainant who has succeeded on any significant issue that
achieved some of the benefit the complainant sought in filing the complaint.
Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). The
Commission has relied on a two-part test set forth in Miller v. Staats, 706 F.2d
336 (D.C. Cir. 1983), for determining whether a complainant is a prevailing
party. Baldwin v. Department of Health & Human Services, EEOC Request No.
05910016 (April 12, 1991). To satisfy the first part of the test, the complainant
must have substantially received the relief sought. Id. To satisfy the second part
of the test, there must be a determination that the complaint was a catalyst
motivating the agency to provide the relief. Id. (citing Miller, 706 F.2d at 341).
A purely technical or de minimis success is insufficient to confer "prevailing
party" status. Texas State Teachers Ass'n.
- The touchstone is whether the actual relief on the merits materially alters the legal
relationship between the parties by modifying the agency's behavior in a way that
directly benefits the complainant. Farrar v. Hobby, 506 U.S. 103 (1992); Bragg
v. Department of the Navy, EEOC Appeal No. 01945699 (March 7, 1996). Even
an award of nominal monetary damages may be sufficient to meet this standard.
Farrar. Monetary relief is not required; non-monetary relief such as reinstatement
or a higher performance rating is sufficient. Id.
- An attorney who represents himself is not entitled to an award of fees. Kay v.
Ehrler, 499 U.S. 432 (1991). Neither a non-attorney nor a federal employee
(including attorneys) who represents a complainant is entitled to an award of fees.
- PRESUMPTION OF ENTITLEMENT
- A prevailing complainant is presumptively entitled to fees and costs unless special
circumstances render such an award unjust. 1614.501(e)(1)(i); New York
Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1983); Thomas v. Department of State,
EEOC Appeal No. 01932717 (June 10, 1994). Special circumstances should be
construed narrowly. The following arguments are not sufficient to show special
- the complainant did not need an attorney;
- the complainant's attorney worked for a public interest organization;
- the complainant's attorney accepted the case pro bono;
- the complainant's attorney was paid from some private fee agreement;
- the complainant was able to pay the costs of the case;
- the agency acted in good faith;
- the agency took prompt action in remedying the discrimination;
- the financial burden of any fee would fall to the taxpayers;
- the agency has limited funds.
See Blanchard v. Bergeron, 489 U.S. 87 (1989); Roe v. Cheyenne Mountain
Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1997); Jones v. Wilkinson, 800
F.2d 989 (10th Cir. 1986); Fields v. City of Tarpon Springs, 721 F.2d 318 (11th
Cir. 1983); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); see also Wise
v. Department of Veterans Affairs, EEOC Request No. 05920056 (April 1, 1992).
- Agencies are not required to pay for attorney's fees for services rendered during
the pre-complaint process unless an administrative judge issues a decision finding
discrimination, the agency issues a final order that does not implement the
decision, and EEOC upholds the administrative judge's decision on appeal. If the
agency agrees to fully implement the Administrative Judge's decision, it cannot
be compelled to pay attorney's fees for fees incurred during the pre-complaint
process, except that fees may be recovered for a reasonable period of time for
services performed in reaching the decision whether to represent the complainant.
1614.501(e)(1)(iv). The agency and the complainant can agree, however, that
the agency will pay attorney's fees for pre-complaint process representation. Id.
- No attorney's fees may be awarded under the Age Discrimination in Employment
Act or Equal Pay Act for services performed at the administrative level. Lowenstein v. Baldridge, 38 Fair Empl. Prac. Cas. (BNA) 466 (D.D.C. 1985);
- AWARDS TO PREVAILING PARTIES IN NEGOTIATED SETTLEMENTS
- A complainant who prevails through a negotiated settlement is entitled to
attorney's fees and costs under the same standards as any other prevailing party.
Maher v. Gagne, 448 U.S. 122 (1980); Copeland v. Marshall, 641 F.2d 880 (D.C.
Cir. 1980); EEOC v. Madison Community Unit Sch. Dist. 12, 818 F.2d 577 (7th
Cir. 1987); Cerny v. Department of the Navy, EEOC Request No. 05930899
(October 19, 1994). A settlement agreement that fails, however, to preserve the
issue of fees and costs will operate as an implicit waiver of fees and costs.
Wakefield v. Matthews, 852 F.2d 482 (9th Cir. 1988); Elmore v. Shuler, 787 F.2d
601 (D.C. Cir. 1986). The Commission strongly encourages parties to resolve fee
and cost issues by negotiated settlement.(1)
- The Administrative Judge will not review a negotiated fee agreement for fairness
or reasonableness, except in class cases. Foster v. Boise-Cascade, Inc., 577 F.2d
335 (5th Cir.) (per curiam), reh'g denied, 581 F.2d 267 (5th Cir. 1978); Jones v.
Amalgamated Warbasse Houses, Inc., 721 F.2d 881 (2d Cir. 1983), cert. denied,
466 U.S. 944 (1984). In class cases, the Administrative Judge should review the
agreement to ensure that the negotiated fee is fair and reasonable to all parties.
- AWARDS OF COSTS AND FEES FOR EXPERT AND NON-LAWYER SERVICES
- A prevailing complainant is entitled to recovery of his/her costs. Costs include
those costs authorized by 28 U.S.C. 1920. 1614.501(e)(2)(ii)(C). These
include: witness fees; transcript costs; and printing and copying costs. In addition,
reasonable out-of-pocket expenses may include all costs incurred by the attorney
that are normally charged to a fee-paying client in the normal course of providing
representation. Hafiz v. Department of Defense, EEOC Petition No. 04960021
(July 11, 1997). These costs may include such items as mileage, postage,
telephone calls, and photocopying.
- A prevailing complainant is entitled to expert fees as part of recoverable attorney's
fees. 42 U.S.C. 1988. The fee is not limited to per diem expenditures, but
includes all expenses incurred in connection with the retention of an expert. Id.
Recovery is generally limited to testifying experts, but fees may be awarded for
non-testifying experts if the complainant can show that the expert's services were
reasonably necessary to the case.
- A prevailing complainant is entitled to compensation for the work of law clerks,
paralegals, and law students under the supervision of members of the Bar, at
market rates, 1614.501(e)(1)(iii), but not for clerical services. Missouri v.
Jenkins, 491 U.S. 274 (1989).
- Reasonable costs incurred directly by a prevailing complainant (e.g., one who is
unrepresented or who is represented by a non-lawyer) are compensable. Hafiz,
supra. Costs must be proved in the same manner as fees are, and the complainant
must provide documentation, such as bills or receipts.
- Witness fees shall be awarded in accordance with 28 U.S.C. 1821, except that
no award shall be made for a federal employee who is in a duty status when made
available as a witness. 1614.501(e)(2)(iii).
- COMPUTATION OF ATTORNEY'S FEES
- Attorney's fees will be computed by determining the "lodestar." The "lodestar"
is the number of hours reasonably expended multiplied by a reasonable hourly
rate. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). By regulation, the
Commission uses the same basis for calculating the amount of attorney's fees.
- All hours reasonably spent in processing the complaint are compensable.
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. 1614.501(e)(1)(iv).
- Fees for services rendered during the pre-complaint process may be
awarded only under the circumstances set forth above in Section III. B.
- An attorney is eligible for work performed at the appeals stage for an
award of fees, provided the complainant prevails at this stage.
- The number of hours should not include excessive, redundant, or otherwise
unnecessary hours. Hensley, 461 U.S. at 434; Bernard v. Department of
Veteran Affairs, EEOC Appeal No. 01966861 (July 17, 1998). The
presence of multiple counsel at hearing or deposition may be considered
duplicative in certain situations, such as where one or more counsel had
little or no participation or where the presence of multiple counsel served
to delay or prolong the hearing or deposition. Hodge v. Department of
Transportation, EEOC Request No. 05920057 (April 23, 1992). The
presence of multiple counsel is not necessarily duplicative, however, and
is often justifiable. Time spent on clearly meritless arguments or motions,
and time spent on unnecessarily uncooperative or contentious conduct may
be deducted. Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997);
Clanton v. Allied Chemical Corp., 416 F. Supp. 39 (E.D. Va. 1976).
- A reasonable hourly rate is a rate based on "prevailing market rates in the
relevant community" for attorneys of similar experience in similar cases.
Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748
(July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886 (1984)). A higher
rate for time spent at hearing may be reasonable if trial work would
command a higher rate under prevailing community standards. Where
multiple attorneys have worked on the case, the rate for each attorney
should be determined separately. The limits on hourly rates contained in
the Equal Access to Justice Act are not applicable.
- The applicable rate for fee awards to public interest attorneys is the
prevailing hourly rate for the community in general. Hodge v. Department
of Transportation, EEOC Request No. 05920057 (April 23, 1992). In Save
Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir.
1988), the court held that the prevailing market rate should also be used
to determine fee awards to private, for-profit attorneys who represent
certain clients at reduced rates, which reflect "non-economic" goals. See
also Cooley v. Department of Veterans Administration, EEOC Request No.
05960748 (July 30, 1998); Hatfield v. Department of the Navy, EEOC
Appeal No. 01892909 (December 12, 1989).
- The hours spent on unsuccessful claims should be excluded in considering
the amount of a reasonable fee only where the unsuccessful claims are
distinct in all respects from the successful claims. Hensley v. Eckerhart,
461 U.S. 424 (1983).
- The degree of success is an important factor in calculating an award of
attorney's fees. Farrar v. Hobby, 506 U.S. 103 (1992). In determining the
degree of success, the relief obtained (including both monetary and equitable relief) should be considered in light of the complainant's goals. City of
Riverside v. Rivera, 477 U.S. 561 (1986); Cullins v. Georgia Dep't of
Transportation, 29 F.3d 1489 (1994). Where the complainant achieved
only limited success, the complainant should receive only the amount of
fees that is reasonable in relation to the results obtained. Hensley v.
Eckerhart, 461 U.S. 424 (1983); Cerny v. Department of the Navy, EEOC
Request No. 05930899 (October 19, 1994). However, a reasonable fee
may not be determined by mathematical formula based on monetary relief
obtained. Riverside; Cullins. The determination of the degree of success
should be made on a case-by-case basis. In many cases, an award of
equitable relief only or a small award of monetary damages may reflect a
high degree of success. Failure to obtain the maximum damages allowable
or a large monetary award generally does not reflect limited success.
- There is a strong presumption that the lodestar represents the reasonable fee.
1614.501(e)(2)(ii)(B). In limited circumstances, the lodestar figure may be
adjusted upward or downward, taking into account the degree of success, the quality of representation, and long delay caused by the agency. The lodestar may be
adjusted only under the circumstances described in this sub-part.
- An award of attorney's fees may be enhanced in cases of exceptional
success. The complainant must show that such an enhancement is necessary to determine a reasonable fee. City of Burlington v. Dague, 505 U.S.
557 (1992). Conversely, a fee award may be reduced in cases of limited
success. Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782
(1989). However, there is no requirement that fee awards be proportional
to the amount of monetary damages awarded. City of Riverside v. Rivera,
477 U.S. 561 (1986).
- An award of attorney's fees may be enhanced where the quality of representation is exceptional. McKenzie v. Kennickell, 875 F.2d 330 (D.C. Cir.
1989). Conversely, the award of attorney's fees may be reduced where the
quality of representation was poor, the attorney's conduct resulted in undue
delay or obstruction of the process, or where settlement likely could have
been reached much earlier but for the attorney's conduct. Lanasa v. City
of New Orleans, 619 F. Supp. 39 (E.D. La. 1985); Barrett v. Kalinowski,
458 F. Supp. 689 (M.D. Pa. 1978).
- The lodestar may not be enhanced to compensate for the risk of non-payment, risk of losing the case, or difficulty finding counsel. City of
Burlington v. Dague, 505 U.S. 557 (1992).
- A lodestar may be adjusted to compensate for a long delay where the
delay is caused by the agency. Pennsylvania v. Delaware Valley Citizens'
Council, 483 U.S. 711 (1987).
- If the Administrative Judge or agency determines that an adjustment to the
lodestar is appropriate, the Administrative Judge or agency may calculate
the adjustment by either adding or subtracting a lump sum from the
lodestar figure or by adding or subtracting a percentage of the lodestar.
The Administrative Judge or agency has discretion to determine the
amount of the adjustment. Normally, the adjustment should be no more
or less than 75% of the lodestar figure. The Administrative Judge or
agency must provide a detailed written explanation of why the adjustment
was made, and what factors supported the adjustment. Coutin v. Young
& Rubicam Puerto Rico, Inc., 124 F.3d 331 (1st Cir. 1997).
- The party seeking to adjust the lodestar, either up or down, has the burden
of justifying the deviation. Copeland v. Marshall, 641 F.2d 880, 892 (D.C.
Cir. 1980); Brown v. Department of Commerce, EEOC Appeal No.
01944999 (May 17, 1996).
- Where a complainant rejects an offer of resolution and the final decision is not
more favorable than the offer, attorney's fees and costs incurred after the expiration of the thirty (30) day acceptance period are not compensable.
1614.109(c)(3). This regulation further provides that an Administrative Judge
may award attorney's fees and costs despite the complainant's failure to accept an
offer of resolution where "the interests of justice would not be served" by a denial
of fees. An example of when fees would be appropriate is where the complainant
received an offer of resolution, but was informed by a responsible agency official
that the agency would not comply in good faith with the offer (e.g., would
unreasonably delay implementation of the relief offered). A complainant who
rejected the offer for that reason, and who obtained less relief than was contained
in the offer of resolution, would not be denied attorney's fees in this situation.
- When the decision-making authority, that is, the agency, an administrative judge,
or the Commission, issues a decision finding discrimination, the decision normally
should provide, under the standards set forth above, for the complainant's entitlement to attorney's fees and costs. The complainant's attorney then must submit
a verified statement of attorney's fees (including expert witness fees) and other
costs, as appropriate, to the agency or administrative judge within thirty (30) days
of receipt of the decision and must submit a copy of the statement to the agency.
A statement of attorney's fees and costs must be accompanied by an affidavit
executed by the attorney of record itemizing the attorney's charges for legal
services. A verified statement of fees and costs shall include the following:
- a list of services rendered itemized by date, number of hours, detailed
summary of the task, rate, and attorney's name;
- documentary evidence of reasonableness of hours, such as
contemporaneous time records, billing records, or a reasonably accurate
substantial reconstruction of time records;
- documentary evidence of reasonableness of rate, such as an affidavit
stating that the requested rate is the attorney's normal billing rate, a
detailed affidavit of another attorney in the community familiar with
prevailing community rates for attorneys of comparable experience and
expertise, a resume, a list of cases handled, or a list of comparable cases
where a similar rate was accepted; and
- documentation of costs.
National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319
(D.C. Cir. 1982). A fee award may be reduced for failure to provide adequate
documentation. If seeking an adjustment to the lodestar figure, the fee application
shall clearly identify the specific circumstances of the case that support the
requested adjustment. Id.
- The agency may respond to the statement of fees and costs within 30 days of its
receipt. If the agency contests the fee request, it must provide equally detailed
documentation in support of its arguments. National Ass'n of Concerned Veterans
v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982).
- Discovery into the reasonableness of the hours or rate is permissible, but discouraged. The Administrative Judge has discretion to grant or deny permission
to conduct discovery by interrogatory or document request.
- The Administrative Judge or agency will issue a decision determining the amount
of attorney's fees or costs due within 60 days of receipt of the statement and
affidavit. 1614.501(e)(2)(ii)(A). The decision should provide a written explanation of any award of fees and costs, including, as appropriate, findings of fact,
analysis, and legal conclusions. 1614.501(e)(2)(ii)(A). The decision must
include a notice of right to appeal to the EEOC.
- The Commission encourages the parties to resolve fee and cost issues by
negotiated settlement during the 30-day period for filing a fee petition. As noted
in section IV. B above, the administrative judge will not review a negotiated fee
agreement for fairness or reasonableness, except in class cases.
- If the administrative judge decides to bifurcate the liability and damages determinations in a case, the decision on liability should provide for entitlement to
attorney's fees and the subsequent decision on damages should also include the
determination of the amount of the award of fees and costs. The complainant's
attorney should be directed to submit the statement of fees and costs within 30
days of receipt of the decision finding liability. The attorney may submit a
supplemental petition for fees incurred during the damages phase of the case.
- An Administrative Judge may award interim fees pendente lite where the complainant has prevailed on an important non-procedural allegation of discrimination
in the course of the case. Hanrahan v. Hampton, 446 U.S. 754 (1980); Trout v.
Garrett, 891 F.2d 332 (D.C. Cir. 1989). However, interim awards should be
granted only under special circumstances, such as where a complainant's attorney
has invested substantial time and resources into a case over a long period of time.
- A prevailing complainant is entitled to an award of fees for time spent on a fee
claim, including time spent defending the award on appeal. Southeast Legal
Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981); Lund v. Affleck, 587
F.2d 75 (1st Cir. 1978). However, the Administrative Judge may reduce or eliminate fees for time spent on litigating the fee award where fee claims are exorbitant
or the time devoted to preparing a fee claim is excessive. Gagne v. Maher, 594
F.2d 336 (2d Cir. 1979), aff'd, 448 U.S. 122 (1980). A reasonableness standard
applies. Black v. Department of the Army, EEOC Request No. 05960390
(December 9, 1998).
- Even absent a finding of discrimination, the administrative judge has authority to
impose attorney's fees and costs as an appropriate sanction for refusal to obey
discovery or other orders. 1614.109(f)(3)(v). For example, a complainant may
be entitled to attorney's fees when the agency fails without good cause shown to
respond to discovery requests, Shine v. U.S. Postal Service, EEOC Appeal No.
01972201 (December 12, 1998), or falsifies documents or testimony, Wichy v. Air
Force, EEOC Appeal No. 01962972 (September 25, 1998). Fees and costs may
be awarded for work associated with efforts to secure discovery compliance, even
when the complainant does not prevail on the merits. Stull v. Department of
Justice, EEOC Appeal No. 01942827 (June 15, 1995).
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1. Where the parties enter into a settlement agreement that provides for but does not quantify the
amount of attorney's fees and costs, the attorney should submit his/her statement of fees and costs and
supporting documentation to the agency for determination of the amount due. The agency should issue
a decision on fees within 60 days of receipt of the statement and supporting documentation. See
1614.501(e)(2)(ii)(A). If the complainant disputes the amount awarded, s/he may file an appeal with
2. Where the Commission finds discrimination in a case in which the agency takes final action under
1614.110(a), the Commission will remand the case to the Administrative Judge for a determination of
attorney's fees. Where the decision on appeal originates from a case handled exclusively by the agency
(i.e., where the complainant elected a final agency decision under 1614.110(b)), the Commission will
remand the case to the agency for a determination of attorney's fees.
This page was last modified on September 30, 2003.
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