NATURAL MOTION v. COM'N ON HUMAN RIGHTS, 97-AA-1664.

• Decision Date: 18 March 1999
• Docket Number: No. 97-AA-1664.,97-AA-1664.
• Citation: 726 A.2d 194
• Parties: NATURAL MOTION BY SANDRA, INC. and Sandra U. Butler, Petitioners, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent, Estate of Richard Andre Hamilton, Intervenor.
• Court: D.C. Court of Appeals

726 A.2d 194

NATURAL MOTION BY SANDRA, INC. and Sandra U. Butler, Petitioners, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent, Estate of Richard Andre Hamilton, Intervenor.

No. 97-AA-1664.

District of Columbia Court of Appeals.

Argued October 8, 1998.

Decided March 18, 1999.

Karen E. McDonald, for petitioner.

Laura K. McNally, Washington, DC, for intervenor.

Jo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Before FARRELL¹ and RUIZ, Associate Judges, and NEWMAN, Senior Judge.

RUIZ, Associate Judge.

This is a petition for review of a decision of the District of Columbia Commission on Human Rights (Commission) awarding intervenor, the Estate of Richard Andre Hamilton, litigation expenses and attorney's fees. Petitioners, Sandra Butler and Natural Motion by Sandra, Inc., claim that the Commission erred in awarding attorney's fees because Hamilton's petition for fees was not timely filed. In the alternative, appellants assert that, because Hamilton, on remand, waived his claim for back pay damages, the Commission should have subtracted specific charges related to mitigation of damages and back pay from the final award of attorney's fees. We conclude that Hamilton's fee petition was timely filed and, therefore, the Commission properly awarded attorney's fees. We also find that the final amount awarded by the Commission was appropriate. Accordingly, we affirm.

In 1991, Sandra Butler, owner of Natural Motion by Sandra, Inc., fired Richard Hamilton, a long-time hair salon employee. Hamilton filed a complaint with the Commission claiming that his termination constituted disability discrimination. The Commission found Natural Motion liable for violations of the Human Rights Act of 1977, D.C.Code § 1-2501 et seq. (1992).

In 1997, this court affirmed the Commission's findings on liability and compensatory damages, but reversed the award of back pay and remanded for further inquiry into whether Hamilton adequately mitigated his damages. We also dismissed as premature the portion of the petition for review that challenged the attorney's fees award because the Commission had not yet determined the amount.² Subsequently, without conceding the merits of his back pay claim, Hamilton waived his claim for back pay damages "to avoid the further delay that would be caused by protracted litigation on this issue."³ This left attorney's fees and costs as the sole issue for the Commission to consider. On September 12, 1997, the Commission issued its Final Decision and Order on Remand awarding Hamilton $24,940.78 for litigation expenses and $236,098.89 for attorney's fees. Butler and Natural Motion by Sandra, Inc. appeal from this decision, claiming that Hamilton's estate is not entitled to the total amount awarded by the Commission.⁴

This court's review of the Commission's order awarding costs and attorney's fees is limited to determining whether the order was in accordance with the law and supported by substantial evidence in the record. See Wisconsin Ave. Nursing Home v. District of Columbia Comm'n on Human Rights, 527 A.2d 282, 287 (D.C.1987)

; RAP, Inc. v. District of Columbia Comm'n on Human Rights, 485 A.2d 173, 177 (D.C.1984) (citing D.C.Code § 1-1510(a)(1) (1981)). We deal first with the issue of whether Hamilton's March 16, 1995 fee petition was timely filed. Natural Motion by Sandra, Inc. and Butler contend that Hamilton's fee petition was late because it was filed three months after the Commission issued its December 29, 1994 Final Decision and Order. Although both Hamilton and Alice Nolan, Butler's business partner, filed motions for reconsideration subsequent to the December 29, 1994 order, appellants claim that, as to all issues not addressed on reconsideration, this December 29, 1994 order was final.

In determining that Hamilton's fee petition was timely, the Commission looked to the District of Columbia Superior Court rules for guidance. Superior Court Civil Rule 54 provides that a fee petition must be "filed and served no later than fourteen days after entry of judgment." Super. Ct. Civ. R. 54(d)(2)(B). The term judgment is defined as "any order from which an appeal lies." Super. Ct. Civ. R. 54(a). Natural Motion does not contest the Commission's reliance on Super. Ct. Civ. R. 54. It instead argues that the fee petition should have been filed within fourteen days of the Commission's December 29, 1994 order because that order was appealable as to the attorney's fee issue which was not addressed in the motion for reconsideration. Thus, the timeliness of Hamilton's fee petition turns on whether the Commission's December 29, 1994 Final Decision and Order was immediately appealable given that motions for reconsideration were filed subsequent to the order.

The D.C. Court of Appeals Rules state that "[t]he running of the time for filing a petition for review is terminated as to all parties by the timely filing ... of a petition for rehearing or reconsideration." D.C.App. R. 15(b); see also Flores v. District of Columbia Rental Hous. Comm'n, 547 A.2d 1000, 1003 (D.C.1988)

(time for filing petition for review tolled by filing motion for reconsideration with agency); United Transp. Union v. I.C.C., 276 U.S.App.D.C. 374, 377, 871 F.2d 1114, 1117 (1989) (judicial review of agency action barred until agency acts on any outstanding petitions for reconsideration). Thus, an agency decision is not final for purpose of appeal to this court until all motions for reconsideration have been acted upon by the agency. Consequently, the Commission's December 29, 1994 order was not final until the Commission decided the pending motions for reconsideration. On September 27, 1995, the Commission ruled on the motions for reconsideration, thereby making its Final Decision and Order appealable.⁵

See Myrick v. District of Columbia Bd. of Zoning Adjustment, 577 A.2d 757, 762 n. 11 (D.C.1990) (petition for review timely if filed from date pending motions for reconsideration are decided). Under Superior Court rules, Hamilton was required to file and serve the fee petition by October 11, 1995, fourteen days from "entry of judgment." Super. Ct. Civ. R. 54(d)(2)(B). Because he filed the fee petition on March 16, 1995, the petition was well within the statutory time limit.⁶ Accordingly, we find no error in the Commission's consideration of the fee petition filed March 16, 1995.⁷

Appellants also claim that the Commission should have discounted the attorney's fee award by the amount of time Hamilton's counsel spent on the issue of back pay damages because Hamilton waived the back pay claim on remand. Generally speaking, fees related to work on an unsuccessful claim are not recoverable. See Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)

. The Supreme Court has recognized, however, that it is often impossible to distinguish hours spent on individual claims that are ultimately unsuccessful from time spent on the overall successful litigation:

Many civil rights cases will present only a single claim. In other cases, the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead, the ... court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on litigation.

Id. at 435, 103 S.Ct. 1933. Adopting the Hensley analysis, the Commission determined that, because the claims in the case were so "intertwined," it would not reduce Hamilton's overall award because he lost on the issue of back pay.⁸ The claim for relief in this case involved a "common core of facts," the employer's unlawful discriminatory treatment of Hamilton, its employee. The back pay claim was just part of Hamilton's claims for damages resulting from this discriminatory treatment, including damages for "humiliation, embarrassment and indignity associated with the firing." See Natural Motion (I), supra note 1, 687 A.2d at 218. Because the issues underlying the various damages claims are interrelated, the Commission did not err in determining the fee award based on the ultimate outcome.⁹ "Where a [party] has obtained excellent results, his attorney should recover a fully compensatory fee.... [T]he fee award should not be reduced simply because the [party] failed to prevail on every contention raised in the lawsuit." Hensley, supra, 461 U.S. at 435, 103 S.Ct. 1933. Therefore, we affirm the Commission's decision not to reduce Hamilton's overall fee award simply because he waived the issue of back pay.¹⁰ For the foregoing reasons, the Commission's attorney's fee award is

Affirmed.

1. Judge Farrell joins the opinion, but does not join footnote 9.

2. See Natural Motion By Sandra, Inc. v. District of Columbia Comm'n on Human Rights (Natural Motion (I)), 687 A.2d 215 (D.C.1997).

3. In 1997, Hamilton died from complications relating to AIDS. On his death, the estate of Hamilton substituted as Intervenor in this case.

4. Appellants also claim that the Commission erred in awarding attorney's fees because it did not make an explicit finding of bad faith or vexatious pleadings. However, under the Human Rights Act an award of attorney's fees is not contingent on a Commission finding of bad faith or vexatious pleadings, but on a finding of "unlawful discriminatory practice," D.C.Code § 1-2553(a)(1), which the Commission clearly found in its December 29, 1994 Notice of Final Decision and Order, and this court subsequently affirmed. See Natural Motion (I), supra note 1.

5. In their brief, Natural Motion and Butler indicate that they filed a timely appeal from the Commission's September 27,...