Little v. Traynor

• Decision Date: 27 June 1997
• Docket Number: No. 960283,960283
• Citation: 1997 ND 128,565 N.W.2d 766
• Parties: Stephen D. LITTLE and Kathryn L. Dietz, Petitioners and Appellees, v. J. Patrick TRAYNOR, Executive Director of the North Dakota Workers Compensation Bureau, and the North Dakota Workers Compensation Bureau, Respondents and Appellants. Civil
• Court: North Dakota Supreme Court

Page 766

565 N.W.2d 766

1997 ND 128

Stephen D. LITTLE and Kathryn L. Dietz, Petitioners and Appellees, v. J. Patrick TRAYNOR, Executive Director of the North Dakota Workers Compensation Bureau, and the North Dakota Workers Compensation Bureau, Respondents and Appellants.

Civil No. 960283.

Supreme Court of North Dakota.

June 27, 1997.

Dean J. Haas, of Dietz, Little & Haas, Bismarck, for petitioners and appellees.

Brent J. Edison (argued), Special Assistant Attorney General, and Tracy Vigness Kolb (appearance), Special Assistant Attorney General, Bismarck, for respondents and appellants.

SANDSTROM, Justice.

¶1 The Workers Compensation Bureau appeals from a judgment invalidating its rulemaking action involving N.D.A.C. § 92-01-02-11.1, which sets a maximum claimant attorney fee rate and various fee caps, and limits reimbursement for a claimant's costs to $100 absent prior Bureau approval. The Bureau also appeals from an order awarding Stephen D. Little and Kathryn L. Dietz $450 in attorney fees. We conclude the Bureau's adoption of an $85-per-hour maximum hourly rate and various fee caps to compensate a claimant's attorney in N.D.A.C. § 92-01-02-11.1(1) and (3)(b) through (i) was based on an adequate administrative rulemaking record and was not an arbitrary or capricious application of its statutory authority, and its adoption in N.D.A.C. § 92-01-02-11.1(9)(e) of a $100 limit for reimbursement of a claimant's reasonable and necessary costs, unless approved by the Bureau in advance of their accrual, was not beyond the scope of the Bureau's authority. We also conclude the district court did not abuse its discretion in awarding Little and Dietz attorney fees under N.D.C.C. § 28-32-21.1. We therefore reverse the judgment invalidating parts of N.D.A.C. § 92-01-02-11.1, and affirm the order awarding attorney fees.

I

¶2 During the latter part of 1995, the Bureau conducted rulemaking proceedings under N.D.C.C. Chapter 28-32 to consider its proposed amendments to N.D.A.C. § 92-01-02-11.1 relating to payment of costs and attorney fees for claimants in workers compensation litigation. Little and Dietz, attorneys who represent numerous claimants before the Bureau, see Little v. Tracy, 497 N.W.2d 700, 702 (N.D.1993), appeared, along with others, at the public hearing and submitted written comments objecting to the proposed amendments.

¶3 The new rules were promulgated and, on October 30, 1995, were found by the Attorney General to be in compliance with N.D.C.C. § 28-32-02. Effective January 1, 1996, the parts of N.D.A.C. § 92-01-02-11.1 at issue here provide:

"Attorney fees. Following an attempt to resolve a dispute through the worker adviser program, fees for legal services provided by employees' attorneys and legal assistants working under the direction of employees' attorneys will be paid when an order reducing or denying benefits is submitted to administrative hearing, district court, or supreme court and the employee prevails; when an order reducing or denying benefits is submitted to binding arbitration and the employee prevails; or when an informal decision reducing or denying benefits is submitted to binding dispute resolution and the employee prevails subject to the following:

"1. Attorneys must be paid at the rate of eighty-five dollars per hour for all actual and reasonable time other than traveltime when the matter is submitted to formal administrative hearing, to binding arbitration, or to binding dispute resolution and the employee prevails. Traveltime must be paid at the rate of forty dollars per hour.

* * * * * *

"3. Total fees paid by the bureau for all legal services in connection with a claim may not exceed the following:

* * * * * *

"b. At a rate of eighty-five dollars per hour the sum of seven hundred dollars, plus reasonable costs incurred, for legal services in connection with an offer by the bureau to make a lump sum settlement pursuant to subsection 1 of North Dakota Century Code section 65-05-25.

"c. The total sum of one thousand eight hundred dollars, plus reasonable costs incurred, following issuance of an administrative order under North Dakota Century Code chapter 28-32 reducing or denying benefits, for services provided if the formal hearing request is resolved by settlement before the evidentiary hearing is held.

"d. The total sum of three thousand six hundred dollars, plus reasonable costs incurred, if the employee prevails after an evidentiary hearing is held.

"e. The total sum of four thousand dollars, plus reasonable costs incurred, if the employee's district court appeal is settled prior to submission of briefs. The total sum of five thousand five hundred dollars, plus reasonable costs incurred, if the employee prevails after hearing by the district court.

"f. The total sum of six thousand five hundred dollars, plus reasonable costs incurred, if the employee's North Dakota supreme court appeal is settled prior to hearing. The total sum of seven thousand two hundred dollars, plus reasonable costs incurred, if the employee prevails after hearing by the supreme court.

"g. If the bureau has awarded benefits and the employer requests a rehearing, the bureau may, in its discretion, pay the employee's attorney fees and costs in connection with the rehearing. Total fees paid pursuant to this section may not exceed the sum of one thousand five hundred dollars.

"h. The total sum of six hundred dollars, plus reasonable costs incurred, for services in connection with binding arbitration, if the employee prevails, provided further that the fees may not exceed twenty percent of the amount awarded.

"i. The total sum of one thousand dollars, plus reasonable costs incurred, if the employee requests binding dispute resolution and prevails. The total sum of five hundred dollars plus reasonable costs incurred, if the employer requests binding dispute resolution and the employee prevails.

* * * * * *

"9. The following costs will be reimbursed:

* * * * * *

"e. Other reasonable and necessary costs, not to exceed one hundred dollars. Other costs in excess of one hundred dollars may be reimbursed only upon agreement, in advance, by the bureau. Costs for typing and clerical or office services will not be reimbursed."

¶4 In January 1996, Little and Dietz appealed the Bureau's rulemaking action to district court. The Bureau moved for leave to pursue discovery and seek information about Little and Dietz's recovery of attorney fees from their clients' permanent partial impairment awards and their recovery of fees from their clients in instances where fees were not paid by the Bureau. Little and Dietz opposed the motion and requested an award of attorney fees under either N.D.R.Civ.P. 11 or N.D.C.C. § 28-32-21.1(1) for having to respond to the motion. The Bureau then withdrew its motion, and the district court awarded Little and Dietz $450 in attorney fees.

¶5 The district court ruled the Bureau had arbitrarily and capriciously applied the authority granted to it by N.D.C.C. § 65-02-08 in setting either "a reasonable maximum hourly rate" or the fee caps in the rule. The court found "no evidence at all that would support a determination that $85 is a reasonable maximum hourly rate or that the maximum fees are reasonable." The court invalidated those provisions and remanded the matter to the Bureau "so that it can adopt a reasonable maximum hourly rate and a maximum fee rate based upon an adequate record."

¶6 The district court also held N.D.A.C. § 92-01-02-11.1(9)(e), requiring advance agreement by the Bureau to reimburse costs in excess of $100, was invalid. The court ruled, because there is no limiting language in N.D.C.C. § 65-02-08 that relates to costs, the Bureau acted beyond the scope of its statutory authority in enacting that provision.

¶7 The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 28-32-15(2). The Bureau's appeal to this Court was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const. Art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-32-21.

II

¶8 In an appeal from an administrative agency's rulemaking action, our standard of review is the same standard applied by the district court. See N.D.C.C. § 28-32-21. We must affirm the agency's rulemaking action unless the provisions of N.D.C.C. Chapter 28-32 have not been substantially complied with in the proceedings, the rule is unconstitutional on the face of the language adopted, the rule is beyond the scope of the agency's authority to adopt, or the rule is on the face of the language adopted an arbitrary or capricious application of authority granted by statute. See N.D.C.C. § 28-32-19.1; Tracy at 702 n. 8.

A

¶9 The Legislature specifically directed the Bureau to "establish, by administrative rule, a reasonable maximum hourly rate and a maximum fee to compensate an injured employee's attorney for legal services following issuance of an administrative order under chapter 28-32 reducing or denying benefits." N.D.C.C. § 65-02-08. See also N.D.C.C. § 65-02-15 (directing the Bureau to "adopt rules to establish a maximum fee for an injured employee's attorney" when the employee prevails in an arbitration proceeding); N.D.C.C. § 65-10-03 (directing the Bureau to establish "a maximum fee to be paid in an appeal" when the employee prevails). Under N.D.C.C. § 65-02-08, attorney fees are to be paid only when the employee prevails, and "[e]xcept for an initial determination of compensability, an attorney's fee may not exceed twenty percent of the amount awarded, subject to a maximum fee set by administrative rule." The statute further provides it "does not prevent an injured employee or an employer from hiring or paying an attorney; however, the employee's attorney may not seek or obtain costs or attorney's fees from both the bureau and the employee relative to the same services." N.D.C.C. § 65-02-08. The Bureau promulgated N.D.A.C. §...