Costs_attorney fees_employment dispute_State Personnel Commission_timeliness
The superior court was time barred from considering a petition for attorney fees incurred
in the judicial review portion of an employment dispute involving the State Personnel
Commission. The petition for attorney fees was filed well beyond the 30 day limit of N.C.G.S. §
6-19.1.
Cathryn Garner Carson for Robert Winfrey petitioner appellee.
Gloria L. Woods for Forsyth County Department of Social
Services respondent appellant.
McCULLOUGH, Judge.
This matter is an appeal from the 4 June 2002 order granting
$18,000 attorney's fees to Robert Winfrey. Mr. Winfrey provided
legal services during the judicial review portion of Vivica
McIntyre's (hereinafter “petitioner”) underlying employment action.
Petitioner was the prevailing party in the underlying action, and
was awarded attorney's fees generally in an 8 April 1999 order.
These fees were later assigned to Mr. Winfrey in a 9 July 2001
order by Judge Donald W. Stephens. The 9 July 2001 order also
denied Mr. Winfrey's motion for a temporary restraining order and
preliminary injunction regarding settlement negotiations between
the named parties. The assignment of fees was necessary since Mr.Winfrey's license to practice law had been revoked at the time, and
he could no longer act as petitioner's representative.
In the underlying employment case, petitioner was dismissed
on 22 March 1995 from her position as an Income Maintenance
Caseworker II in the Food Stamp Unit by respondent, Forsyth County
Department of Social Services (“DSS”). DSS claimed petitioner's
job performance was unsatisfactory according to state and federal
regulations. In a recommended decision on 24 January 1996,
Administrative Law Judge (“ALJ”) Sammie Chess granted petitioner
reinstatement, lost wages, lost benefits, and reasonable cost of
attorney's fees. The State Personnel Commission (“SPC”) decided to
counter the ALJ's recommended decision and issued an advisory
recommendation that DSS's dismissal of petitioner was reasonable in
light of the circumstances. DSS then rendered its final agency
decision, fully accepting the SPC's recommended decision.
The case moved to Wake County Superior Court before Judge
Stafford G. Bullock who granted reinstatement of petitioner's
wages, benefits, and attorneys fees in an 8 February 1999 order.
Judge Bullock's award to petitioner of attorney's fees was simply
stated, “respondent shall pay petitioner the reasonable costs of
her attorney fees.” This Court affirmed the Wake County Superior
Court in an unpublished decision on 6 June 2000. DSS's subsequent
Petition for Writ of Certiorari was denied by the Supreme Court on
20 December 2000. On 6 April 2001, Mr. Winfrey filed pleadings
entitled “NOTICE OF ATTORNEY CHARGING LIEN” on the parties to the
underlying action. Therein, he asserted that he had rendered legal
services in the amount of forty-five thousand four hundred andfifteen dollars ($45,415.00) to petitioner for both the
administrative and judicial review portions of the case. Mr.
Winfrey did not petition for attorney's fees on his behalf until 18
March 2002 in Wake County.
Mr. Winfrey's application for attorney's fees for the
judicial review portion of the underlying case was heard at the 20
May 2002 Session of the Wake County Superior Court before Judge
Bullock. The court ruled without review of the official record,
and without sworn statements. The award from the May 2002 order
was based on the oral representations by Mr. Winfrey as to the
number of hours of legal services he provided during petitioner's
judicial review portion of the underlying action up until his
disbarment. DSS supplied the court with a copy of N.C. Gen. Stat.
. 6-19.1 (2001), in effect in 1995 at the time the underlying cause
of action arose. This statute was not directly applied in Judge
Bullock's 4 June 2002 order's findings of fact or conclusions of
law. DSS appealed.
DSS raises three alternative issues on appeal. The first of
these issues claims that the superior court abused its discretion
when ordering any specific amount of attorney's fees pursuant to
Mr. Winfrey's motion for such fees, when Mr. Winfrey had not
complied with the procedural steps of N.C. Gen. Stat. . 6-19.1.
DSS argues that the superior court lacked “jurisdiction” to hear
the motion for attorney's fees, specifically that the superior
court was time barred from hearing Mr. Winfrey's motion for
attorney's fees. The second issue raised by DSS is also based on N.C. Gen.
Stat. . 6-19.1. It claims an abuse of discretion by the trial
court's award of general attorney's fees in its 8 April 1999 order
for the underlying employment dismissal claim by petitioner.
Specifically, DSS claims it had “substantial justification” to
dismiss the petitioner in the first place and therefore an award of
attorney's fees against the agency violates the statute. If we
determine DSS did have “substantial justification” to dismiss
petitioner, DSS claims any award of attorney's fees is improper
against the agency and violates N.C. Gen. Stat. . 6-19.1.
Finally, DSS argues that should this Court find the superior
court had jurisdiction to assess the amount of the attorney's fee
award to Mr. Winfrey in the 4 June 2002 order, and that DSS lacked
“substantial justification” to dismiss petitioner in the underlying
action, DSS claims the court abused its discretion when valuing the
attorney's fees at $18,000. DSS claims the court failed to make
requisite findings as to the following factors when assessing a
reasonable fee for the judicial review portion of the case: (a) the
actual attorney representation contract for legal services provided
during the judicial review portion of the underlying employment
case; (b) the basis for any allegation of complexity of the claim;
(c) reasonableness of the application for fees considering the high
degree of complexities; (d) customary charges for legal services
where the cause of action arose; (e) the attorney's years of
experience specifically representing clients with State Personnel
Act Claims. Because we believe Mr. Winfrey's motion for attorney's fees
pursuant to N.C. Gen. Stat. . 6-19.1 did not comply with the
statute's procedural requirements, this opinion will not address
DSS's second and third issues.
Both respondent and Mr. Winfrey argue that this dispute for
attorney's fees stemming from the judicial review portion of the
case is governed by N.C. Gen. Stat. . 6-19.1. The statute grants
the trial court authority to award attorney's fees to a prevailing
party of an agency decision in an employment dispute, and provides:
In any civil action . . . brought by the
State or brought by a party who is contesting
State action pursuant to G.S. 150B-43 or any
other appropriate provisions of law, unless
the prevailing party is the State, the court
may, in its discretion, allow the prevailing
party to recover reasonable attorney's
fees . . . to be taxed as court costs against
the appropriate agency if:
(1) The court finds that the agency
acted without substantial
justification in pressing its claim
against the party; and
(2) The court finds that there are no
special circumstances that would
make the award of attorney's fees
unjust. The party shall petition for
the attorney's fees within 30 days
following final disposition of the
case. The petition shall be
supported by an affidavit setting
forth the basis for the request.
N.C. Gen. Stat. . 6-19.1. Awards for fees incurred during the
administrative portion of an employment dispute, involving the SPC,
are specifically provided for by N.C. Gen. Stat. . 126-4(11)
(2001) limiting review of a commission's award or denial of
attorney's fees. A trial court cannot award attorney's fees in
State Personnel cases for services rendered prior to judicialreview. See Morgan v. N.C. Dept. of Transportation, 124 N.C. App.
180, 183, 476 S.E.2d 431, 433 (1996).
The underlying employment case and award to petitioner for her
reinstatement, lost wages and benefits, and attorney's fees, was
finally disposed of when the Supreme Court denied a Writ of
Certiorari on 20 December 2000. This was the last action settling
the rights of the parties and disposing all issues of the
underlying controversy, leaving only the amount of the awarded
attorney's fees to be determined. Mr. Winfrey's application for
attorney's fees for the judicial review portion of the case was not
until on or about 15 March 2002.
Respondent argues that the superior court lacked jurisdiction
to hear the 15 May 2002 motion because Mr. Winfrey's petition for
attorney's fees was well beyond the 30-day requirement of N.C. Gen.
Stat. § 6-19.1. Respondent rests its jurisdictional argument on the
case Whiteco Industries, Inc. v. Harrelson, 111 N.C. App. 815, 818,
434 S.E.2d 229, 232 (1993), disc. review denied, appeal dismissed,
335 N.C. 566, 441 S.E.2d 135 (1994), which states that: “the 30-day
filing period contained in the statute [ N.C. Gen. Stat. . 6-19.1]
is a jurisdictional prerequisite to the award of attorney's fees,
cf., J.M.T. Mach. Co., Inc. v. United States, 826 F.2d 1042, 1047
(Fed. Cir. 1987) interpreting the Equal Access to Justice Act
(EAJA)[.]” Thus, respondent argues under Whiteco that N.C. Gen.
Stat. . 6-19.1 is an absolute 30-day deadline from final
disposition for filing a petition for attorney's fees, which if not
met, bars a superior court from assessing attorney's fees for the
review portion of the underlying action. Petitioner argues pursuant to the Supreme Court's holding in
Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 459 S.E.2d 626
(1995), which states:
N.C.G.S. . 6-19.1 provides for attorney's fees
to be taxed as costs in some instances. The
court had jurisdiction to interpret this
section. We do not believe the General
Assembly intended that N.C.G.S. . 6-19.1 would
provide for a separate proceeding in which the
court does not have jurisdiction until certain
prerequisites are met.
Id. at 170, 459 S.E.2d at 628 (emphasis added). Petitioner
interprets Able to allow a superior court to hear a petition for
attorney's fees pursuant to N.C. Gen. Stat. . 6-19.1, and grant a
specified award, so long as a superior court generally awarded
attorney's fees in the underlying action.
While Mr. Winfrey states the law of Able correctly--that a
superior court has jurisdiction to award attorney's fees before
final disposition of the case when reviewing the agency action de
novo--we do not agree that Able governs the facts of this case. In
Able, the attorney's fees were both awarded and the amount assessed
by the superior court before the final disposition of the case. In
the instant case, Mr. Winfrey did not petition for attorney's fees
until well over a year after the Supreme Court denied certiorari
and the case became final on 20 December 2000.
We agree with respondent's reading of Whiteco that N.C. Gen.
Stat. § 6-19.1 acts as a time bar to a prevailing party seeking
attorney's fees. Whiteco also falls in line with Able, stating
that, “DOT's argument that the 30-day period establishes a starting
point as well as a deadline” is too narrow. Whiteco Indus., 111
N.C. App. at 818, 434 S.E.2d at 232. The statutory thirty days isnot a starting point, meaning, a party seeking attorney's fees need
not wait until final disposition to petition for them.
Furthermore, the superior court may hear, award, and even assess
attorney's fees pursuant to N.C. Gen. Stat. § 6-19.1 before final
disposition on the merits of the underlying claim as the Court did
in Able.
(See footnote 1)
The superior court initially awarding attorney's fees in
the instant case made no findings as to the amount of fees owed for
the review portion on the underlying merits. Therefore, Mr. Winfrey
should have pursued the specifics of his award under N.C. Gen.
Stat. § 6-19.1 after final disposition on the merits. He did not.
To hold that the statute allowed a party to petition for
attorney's fees after the 30 days from final disposition would make
the statute a nullity. Under such an interpretation, so long as
attorney's fees were awarded in the underlying action generally,
then an attorney could move for them with particularity obtaining
actual valuation when he or she so chooses, and within no required
time frame such as this tax year or the next.
In the instant case, Mr. Winfrey was generally awarded
attorney's fees when Judge Bullock overturned DSS's final agency
decision in the 8 April 1999 order. After the petitioner won on
appeal and petition for certiorari was denied, the disposition on
the merits was final. Judge Bullock's general award of attorney'sfees for the review portion of the case still did not secure Mr.
Winfrey's right to specified attorney's fees. By statute he was
required to petition for them within the 30-day time frame with an
accompanying affidavit, specifying the basis for the particularity
of his fee petition. He did not make his petition for well over a
year from the date of final disposition. Therefore, he is now time
barred from moving for their recovery.
While this Court's holding in Whiteco and the Supreme Court's
holding in Able adequately support our decision, federal decisions
interpreting the similar Equal Access to Justice Act (“EAJA”), 28
U.S.C.S. § 2412, support our reasoning. The federal courts have
repeatedly held the 30-day requirement for filing a petition for
attorney's fees against a government agency is a jurisdictional
prerequisite. In Scarborough v. Prinicipi, 319 F.3d 1346, 1350
(Fed. Cir. 2003) the Federal Circuit Court of Appeals reaffirmed
the following:
The same mandatory language (“shall”) is used with
respect to the thirty-day time limit and the other four
requirements that make up the application. This court and
five other U.S. Courts of Appeals have characterized the
thirty-day time limit for submitting a fee application
under the EAJA as jurisdictional in nature. See Bazalo
v. West, 150 F.3d at 1383; J.M.T. Mach. Co. v. United
States, 826 F.2d 1042, 1047 (Fed. Cir. 1987); see also
Yang v. Shalala, 22 F.3d 213, 215 n.4 (9th Cir. 1994);
Newsome v. Shalala, 8 F.3d 775, 777 (11th Cir. 1993);
Damato v. Sullivan, 945 F.2d 982, 986 (7th Cir. 1991);
Welter v. Sullivan, 941 F.2d 674, 675 (8th Cir. 1991);
Peters v. Sec'y of HHS, 934 F.2d 693, 694 (6th Cir.
1991).
(Emphasis added.)
The superior court was time barred from considering Mr.
Winfrey's petition for attorney's fees. In light of our ruling on
this issue, DSS's second and third issues on appeal contesting thepropriety of the award are moot. After careful review of the
arguments of the parties, the record, and governing North Carolina
case law, the superior court order awarding Mr. Winfrey attorney's
fees for the judicial review portion of the underlying agency
action is
Reversed.
Judges MARTIN and LEVINSON concur.
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