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Simmons v. N.Y.C. Transit Auth., No. 08-4079 (2d Cir. Aug. 3, 2009); Blackmon-Malloy v. U.S. Capitol Police Board, No. 07-5320 (D.C. Cir. Jul. 31, 2009)

| Aug 3, 2009 | Daily Developments in EEO Law |

The Second Circuit issues another warning to lawyers from high-billing jurisdictions who choose to represent clients in courts where the market rate is lower, here tamping down an award of fees in an ADA/Rehab Act case. The D.C. Circuit construes the Congressional Accountability Act of 1995 to find that the employee satisfied the three-step process for commencing an action related to her Capitol Hill employment, and on behalf of a putative class.

Simmons v. N.Y.C. Transit Auth., No. 08-4079 (2d Cir. Aug. 3, 2009):  Two years ago, in Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110 (2d Cir. 2007), the Second Circuit broke with the generation-old “lodestar” approach to awarding attorney’s fees under federal fee-shifting statutes, and adopted what it termed the “presumptively reasonable fee” calculation. Among other things, the Second Circuit’s standard gave primacy to the forum  market rate, even for attorneys who were hired from other jurisdictions.  In that case, the court knocked down the proposed hourly rates of attorneys retained in Manhattan who represented clients in Albany in a voting rights case, holding instead that the correct market rate was for upstate N.Y., not for N.Y.C. 

Apparently, some district courts have been — arguably in derogation of Arbor Hill — awarding Manhattan rates for attorneys representing clients in the Eastern District of New York.  The Second Circuit now puts a brake on that practice, setting a new and seemingly insuperable hurdle:  “We conclude that in order to receive an attorney’s fee award based on higher out-of-district rates, a litigant must overcome a presumption in favor of the forum rule, by persuasively establishing that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result. In this case, Simmons has not overcome the presumption in favor of the forum rule.”

To put an even finer point on it:

“In determining whether a litigant has established such a likelihood, the district court must consider experience-based, objective factors. Among the objective factors that may be pertinent is counsel’s special expertise in litigating the particular type of case, if the case is of such nature as to benefit from special expertise. A litigant cannot overcome the presumption through mere proximity of the districts, nor can a litigant overcome the presumption by relying on the prestige or ‘brand name’ of her selected counsel. Lawyers can achieve prestige and fame in numerous ways that do not necessarily translate into better results. The party seeking the award must make a particularized showing, not only that the selection of out-of-district counsel was predicated on experience-based, objective factors, but also of the likelihood that use of in-district counsel would produce a substantially inferior result. Unless these limitations are  observed, the award of attorney’s fees would not respect what we described in Arbor Hill as the ‘touchstone’ of the doctrine, ‘that district courts should award fees just high enough ‘to  attract competent counsel.” 493 F.3d at 121 (emphasis added). Among the ways an applicant may make such a showing is by establishing that local counsel possessing requisite experience were unwilling or unable to take the case, [citation omitted], or by establishing, in a case requiring special expertise, that no in-district counsel possessed such expertise.”

It is unclear from where in the fee-shifting statutes that this emphatic directive eliminates, but along with Arbor Hill it will certainly dampen the interest of lawyers from major metropolitan areas to file fee-shifting cases beyond their home districts.

Blackmon-Malloy v. U.S. Capitol Police Board, No. 07-5320 (D.C. Cir. Jul. 31, 2009): The Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. § 1301, et seq.,  was the brainchild of Rep. Gingrich and other insurgent G.O.P.ers in 1994:  a law that extends the employment protections of Title VII, the ADA, etc., to Congressional employees.  It was virtually the only plank of the “Contract With America” that passed intact.

Under the CAA, the plaintiff — a female security officer — jumped the procedural hoops of counseling and mediation, and commenced a civil action eight years ago.  As the opinion summarizes:

“The officers filed a complaint in the district court on October 29, 2001, identifying by name more than 250 current and former Capitol Police officers. They alleged systematic discrimination against minority and female officers, including discrimination in hiring, promotion, discipline, retaliation, and maintaining a hostile work environment, in violation of Title VII, 42 U.S.C. §§ 2000e, et seq., and the Civil Rights Act of 1991, id. § 1981a. Various amended complaints were filed adding plaintiffs. An amended class action complaint filed January 29, 2003, the operative complaint in this appeal, identified more than 100 addition al officers as plaintiffs and stated that ‘[t]he plaintiff class agents have exhausted their administrative remedies by completing counseling and mediation with the Office.’ Joint Second Am. Compl. ¶ 7.”

The district court, though, dismissed that action on jurisdictional grounds, holding that the statute required each claimant to  engage in a three-step process: a counseling session with Capitol’s Office of Compliance (“Office”); in-person mediation; and filing of a complaint. Thus, dismissing the case, it held that an individual putative class representative could not vicariously exhaust these requirements on behalf of a class.

The panel, reviewing the dismissal,  agrees that the three requirements are jurisdictional:

“The conclusion that Congress intended the three-step process to be jurisdictional is consistent with the statutory scheme that Congress established to handle discrimination (and other) claims by its employees. Although Congress granted its employees the substantive protections of various remedial federal statutes, it established an independent Office to oversee claims of unlawful conduct with a focus on informing the employee of relevant rights and then mandating a period of mediation for the parties to determine whether informal resolution of the dispute is feasible and worth pursuing. In doing so, Congress struck a balance between affording its
employees the protections enjoyed by other federal employees but initially offering employing offices, which may involve elected Members of Congress [citation omitted], an opportunity to settle claims prior to the commencement of formal administrative or judicial proceedings.”

But at the same time, the panel rejects the district court’s assuption that these prerequisites had to be met in person:

“Because Congress has not explicitly denied an employee the opportunity to appear through a representative at counseling or mediation and has expressly authorized the Office to issue
procedural rules, and because the Office’s interpretation that its Rules 2.04(a) and (g) do not require in-person attendance by the employee at mediation is not ‘plainly erroneous or inconsistent with the [rules],’ [citation omitted], we hold that neither the CAA nor the Office’s procedural rules require the employee’s in-person attendance at counseling or mediation.”

Finally, the panel holds that termination of mediation — the precondition for filing suit — is manifested by the Office’s issuance of a written certificate that the process is complete, a certification that is not reviewable in court.  As a consequence, the panel finds that Blackmon-Malloy met the requirements of the CAA and could proceed with her class action.

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