SHARON CURRY v. THE STATE OF ILLINOIS (2003)

ORDER ON REHEARING AND SUPPLEMENTAL FEE AWARD

Following our January 2,2003 opinion, in which we awarded claimant Curry $5,131.13 for her administrative defense expenses pursuant to/10-55 of the Administrative Procedure Act (APA) (5 ILCS 100/10-55), the parties filed a flurry of additional pleadings:

(1) Respondent filed a motion for reconsideration, which we treat as a timely petition for rehearing under our Rule 220 (74 Ill. Admin. Code/790.220), in which respondent disputes our finding that the DCFS investigator had reversed her original determination of child neglect at the hearing before the DCFS administrative law judge (ALJ) and raises three new procedural issues and one new substantive issue under APA/10-55(a);

(2) Claimant filed a Supplemental Bill of Particulars, in which she requests a supplemental award pursuant to APA/10-55(b) of $11,635 for attorney's fees (at hourly rates ranging from $125 to $170) and $776.46 for other litigation expenses (filing fees, transcript and deposition fees, counsel fees, copying and telephone charges) incurred in prosecuting this administrative expense claim in this court from 1998-2002;

(3) Claimant filed a Response to Respondent's Motion for Reconsideration, which we treat as the answer to claimant's petition for rehearing under Rule 220, supra, which replies to the respondent's APA/10-55 arguments but fails to rebut or even to address respondent's contention that the DCFS investigator never recanted her charges against Ms. Curry;

(4) Respondent filed Objections to claimant's supplemental bill of particulars, which disputed the fee rates charged by claimant's counsel as well as the reasonableness of the 73.5 hours of attorney time claimed in the supplemental bill of particulars, raising nine specific objections to various time entries (although not quantifying much of the objected-to attorney time); and

(5) Claimant filed a Response to respondent's Objections.

Rehearing on the Merits

The court allows respondent's petition for rehearing, and reconsiders its ruling on the merits in light of the substantive -- and unresolved -- factual issue of whether or not the DCFS investigator reversed her original opinion and charges of child neglect by Ms. Curry.

The respondent correctly points out to us that the investigator testified in this court that she never changed her view and that she did not testify otherwise in the ANCRA administrative proceeding. Although not disputing that that was her testiimony here, claimant Curry does not concede that the investigator's latest testimony of her prior testimony is accurate.

We must also correct our previous statement that the transcript of the ANCRA hearing was lost by DCFS and is unavailable. Respondent now points out that there was no transcript -- that the proceedings were audiotaped -- and that it is the tape that was lost by DCFS and is unavailable. This distinction without a difference still leaves the court in the fog of unverifiability as to the investigator's actual testimony in the prior hearing. On this incomplete record, this court cannot confidently determine whether there were two flip-flops by the investigator or none.

Although our original finding that the child neglect charges against nurse Curry were made without reasonable cause did not rest on the investigator's purported change of opinion, the court has concluded that the indeterminacy of that fact -- now established -- warranted a fresh review of the record on the presumption that the DCFS investigator in good faith has consistently held the view that Ms. Curry committed child neglect in this case. For this purpose we grant rehearing.

On rehearing, we have re-reviewed the record with particular scrutiny of the investigator's testimony in this court, in which she sought to defend her original charges against nurse Curry and to explain her bases for her charges in light of (i) the rejection of those charges by the ALJ and the DCFS Director, and (ii) claimant's expense petition, which alleges an absence of grounds for those charges. The court adheres to its finding that there was no reasonable basis for charging Ms. Curry with child neglect, and finds no new argument or facts on the merits that warrants further discussion.

On rehearing, however, the respondent advances a new argument on the without reasonable cause determination. Although this argument is beyond the intended scope of our rehearing rule, we address respondent's contention that the DCFS investigator (motion for reconsideration, f12):

made [the charges] believing in reasonabl[e] good faith that the charge was supported by evidence; and therefore, the allegation was not made without reasonable cause.

This argument would substitute a subjective good faith standard for the objective reasonable cause standard of APA/10-55(a), and must be rejected as contrary to both the language and purpose of the statute. Although the respondent urges good faith as a defense, the effect of adopting a test that equates reasonable cause for a legal char ge or allegation with a good faith but mistaken belief that such cause exists would excise reasonable from the statute. The supporting facts and legal basis that are asserted to bring a charge must be reasonably believed not merely actually believed. Accord, _ (19 _ ) (construing Sup.Ct. Rule 137). Orbit Transport ??

Respondent's Procedural Arguments on Rehearing

On rehearing, the respondent also advances three new procedural arguments under APA/10-55 that we also reject as misconstructions of the statute:

(1) Respondent contends that the without reasonable cause finding required by APA/10-55(a) must be made by the agency in the administrative proceedings -- that such an administrative finding is a pre-condition of filing a petition for litigation expenses here (demonstrated by the use of the past tense found and the lack of mention of this court in/10-55(a)) -- and that this court lacks authority [and hence jurisdiction] to make such findings under APA/10-55(b) (which does mention this court). Respondent ur ges that this court's sole authority is to determine the amount of administrative expenses to be awarded when the agency [i.e., ordinarily its hearing officer or ALJ, subject to the approval/rejection of the agency Director or board] finds that the agency's charges were groundless and effectively frivolous.

This argument flies in the face of the statutory scheme, which bifurcates the procedures between the decision on the merits of the administrative charges, to be made by the agency, and the determination (under APA/10-55(a)) of whether or not the rejected administrative charges were made without reasonable cause, and if so, the amount of the expense award -- which is assigned to this court. In/10-55(b), the statute makes it clear that this court makes the determination of whether an administrative respondent is entitled to any administrative defense expenses: the statutory phrase [i]f allowed any recovery by the Court of Claims plainly encompasses the possibility that this court could reject a/10-55(a) expense claim, which it could not do if the requisite entitlement findings had already been made at the administrative level and the only issue were the amount of the award.

Respondent's attempt to read the past-tense found in/10-55(a) as a legislative indication that the critical finding (without reasonable cause) must be made before the expense petition can be filed in this court is neither sensible nor even a fair inference from the language. The past tense found is contained in the articulation of the requirements for a fee/expense award, and thus must be made before the award. Respondent also disregards the terms of this court's separate statutory grant of jurisdiction, in/8(i) of the Court of Claims Act (705 ILCS 505/8(i)), which empowers us to determine all claims authorized by APA/10-55(a), not merely their damages aspects.

(2) Respondent urges that the administrative record in the agency (here DCFS) and the agency's written decision (here the ALJ's opinion, as approved by Jess MacDonald, the Director of DCFS) are not part of the record in this court unless stipulated (which was not done here). The respondent offers no authority for this nonsensical proposition, which is contrary to our rules (see, e.g., Rule 140; 74 Ill.Admin. Code/790.140) as well as our longstanding practice. There may be a case where evidentiary issues are generated about the correctness or admissibility of portions of an administrative record, but that is not true as a general proposition nor in this case at all.

(3) Respondent finally argues, alternatively, that this court must hold a de novo hearing in this and every/10-55 expense case. That, of course, is true if there is any contested factual issue to try and is not true if there is no factual issue in dispute -- as in any kind of case under our procedures. In this case, there was a hearing. Respondent is entitled to only one evidentiary hearing in the ordinary course, and nothing before us takes this claim out of the ordinary course.

The Supplemental Fee Award

We have carefully reviewed the claimant's counsel's fee and expense records submitted in the supplemental bill of particulars, and the parties arguments as to the reasonableness of those claims. We need discuss only a few of the respondent's objections to the fee claim, and a few that the court interposes on its own motion.

Respondent's objections to the rates charged are unsupported, and although it is correct that the claimant has the burden of proof, we find the supporting affidavits together with the court's own familiarity with Illinois fees in the 1998-2002 time period to be amply adequate to support the rates charged. Respondent's general claims of duplication between co-counsel within the same law firm are insubstantial and unsubstantiated, given the complexity and novelty of the legal issues involved in this case. We observe that respondent has not objected to the time charged for the supplemental briefing that was requested by the court, which involved somewhat novel issues of law.

Respondent's objections to excessive time spent, while generally inchoate and unpersuasive, do strike paydirt in some instances: we agree that 10 hours charged to drafting the complaint to this court duplicates the 4 hours previously billed for drafting a detailed request and supporting petition to DCFS, which as a practical matter is a first draft of the petition to this court. Although we agree with the claimant's defense of the involvement of multiple counsel over a 5-year period, and of the apparent but not necessarily real duplication of effort when transitioning between responsible counsel over the course of a lengthy litigation, as here, we do agree that there has been more multiplicity of lawyering than was strictly required by the reasonable grounds issues in this case, although a close review of the billings here discloses that in some of the allegedly double-billed instances, only one attorney billed the time. And we agree with respondent's objection to 3/4 hours of time shown on extraneous matters.

We conclude that 10.5 hours should be deducted, and we assign the blended rate of $150/hour as a reasonable measure of the average rates involved in the duplication and excess instances; we deduct $1,675 from the $11,635, yielding a fee award of $9,960.

On the other litigation (defense) expenses, the court will allow the filing fees, deposition and transcript expenses, and small outside counsel fees, but will disallow copying and telephone charges, which absent some extraordinary facts are more like overhead than case-specific expenses; we deduct another $31, yeilding an expense award of $745.

The supplemental award for expenses of pursuing this claim will be $10,705.

Conclusion

For the foregoing reasons, it is hereby ORDERED:

1 Respondent's motion for rehearing, taken as a petition for rehearing, is granted;

2. On rehearing, the court affirms its prior findings that the charges against Ms. Curry were made without reasonable cause and are found to be untrue; and that she is entitled to an award of litigation expenses under/10-55(a) of the Administrative Procedure Act;

3. Claimant Sharon Curry is awarded the following amount in full satisfaction of this claim:

A. For her reasonable litigation expenses in defending the DCFS charges, in accordance with/10-55(a) of the Administrative Procedure Act, and as awarded in our previous order herein: $5,135.13; and

B. For her reasonable litigation expenses in pursuing this claim, in accordance with/10-55(b) of the Administrative Procedure Act, and supplementing the award in our previous order herein: $10,705;

4. The total award to claimant Curry in satisfaction of this claim is $15,840.13.

EPSTEIN, J.