North Carolina Lawyers Weekly
G.S. § 126-34.02, as amended in 2013, authorizes the Office of Administrative Hearings to award attorneys’ fees to an employee where reinstatement or back pay is ordered. This authority includes the power to award attorneys’ fees incurred at the appellate level.
We affirm the OAH’s award of attorneys’ fees and costs.
The plain language of the statute does not limit the OAH’s authority to award attorneys’ fees to the administrative portion of a contested case before the OAH, nor does it prohibit the OAH from awarding attorneys’ fees incurred during judicial review before this court or our Supreme Court, take pursuant to § 126-34.02(a). Therefore, we do not read these limitations in the statute.
Our reading of the statute is supported by changes to the whistleblower part of the statute.
Furthermore, to agree with respondent that § 126-34.02(e) does not allow a method of recovering fees for the appellate portion of contested cases would mean the General Assembly intended that state employees who successfully defended appeals against state agencies would have no method of recovering attorneys’ fees incurred on appeal. This interpretation would harm the fair administration of justice, as it would drastically impair an employee’s ability to contest state action in appellate courts.
Therefore, we hold § 126-34.02(e) authorizes the OAH to award attorneys’ fees for the appellate or judicial review portion of a contested case.
Although the issue was not preserved for appellate review, we note that the administrative law judge applied the 12-factor test from Johnson v., Georgia Highway Exp. Inc., 488 F.2d 714 (5th Cir. 1974), in determining reasonable attorneys’ fees. Our state has not adopted the Johnson framework.
Instead, if attorneys’ fees are awarded, the court must make findings of fact to support the award. These findings must include the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.
Affirmed.
Hunt v. N.C. Department of Public Safety (Lawyers Weekly No. 011-157-19, 14 pp.) (John Arrowood, J.) Appealed from the Office of Administrative Hearings (Melissa Owens Lassiter, ALJ) Tamika Henderson for the state; Michael Byrne for petitioner; J. Michael McGuinness for amicus curiae. N.C. App.
