Administrative Hearing Commission

Richard Maseles, Esquire

Licensed professionals prevailing in license disciplinary actions may be entitled to attorney’s fees above the statutory $75 per hour cap, upon a showing of “special factors”. Funk v. Missouri Real Estate Appraisers Commission, No. 10-0213 AF (Mo. AHC, September 10, 2013), Chapel, C.

The Missouri Real Estate Appraisers Commission brought the underlying action to discipline Funk’s license, in which action Funk prevailed at the Administrative Hearing Commission level. The circuit court reversed, but the court of appeals reinstated the commission’s decision (306 S.W.3d 101, Mo. App., W.D. 2010). Then, Funk brought this action for attorney’s fees under § 536.087.3. The action included a request for attorney’s fees higher than the $75 per hour statutory cap set out in § 536.085(4). The cap could be lifted on a showing of special factors .

Funk was entitled to attorney’s fees, because he was the prevailing party. He prevailed at the commission and at the court of appeals. The Appraisers Commission’s position in the underlying action was not substantially justified, even though its expert witness disagreed with Funk’s expert. The commission also decided that Funk was entitled to an award higher than the statutory cap because, while the fact that no attorney in the area was shown to be willing to work for $75 per hour was not itself a special factor, the case required specialized knowledge of administrative law, judicial review of AHC decisions, appellate law, and civil procedure, which knowledge constituted a “special factor.”

When attorney’s fees are sought to be recovered in a license discipline case, market rate alone does not constitute a “special factor” justifying attorney fee rate greater than $75 per hour. Greer v. State Board of Nursing, No. 11-0499 AF (Mo. AHC, September 26, 2013), Nelson, C.

The Board of Nursing brought this action against Greer, alleging that, even though she had followed board instructions for renewing her inadvertently lapsed Advanced Practice Registered Nurse (APRN) license (which was renewed by the board), she allegedly had practiced as an APRN without a license. Greer prevailed there and on the board’s subsequent appeal, and brought this action to recover attorney’s fees and costs, including an award for attorney’s fees at $165 per hour and costs involved with missing work to confer with her attorney, and to attend the hearings.

Greer was entitled to attorney’s fees, but only at the $75 per hour threshold of § 536.085(4), and was not entitled to costs pertaining to missing work. She presented no special factors justifying the higher attorney fee rate other than the fact that $75 per hour was well below the market rate for attorney’s fees in such proceedings, but the commission decided that Greer’s market rate issue was not, itself, a “special factor.”